Because in Baltimore, at least, the average juror doesn’t want to spend time contemplating the inconsistencies in a defendant’s statement, or the complex web of testimony that systematically destroys an alibi, or the discrepancies between a medical examiner’s testimony and a defendant’s self-defense claim. It’s too complicated, too abstract. The average juror wants three upstanding citizens to say that they were eyeball witnesses to the crime and another two who can assure them of the killer’s motivation. Throw in a recovered murder weapon, a few print hits and a positive DNA match and then, by God, you’ve got a jury ready to mete out some punishment.
To a detective, however, it’s the circumstantial prosecutions that often represent the best police work, and for that reason Rule 9B has profound meaning. In theory, the dunkers take care of themselves in court. But the best cases-the kind a cop takes pride in-always do seem to get the worst juries.
As with every other part of the criminal justice machine, racial issues permeate the jury system in Baltimore. Given that the vast majority of urban violence is black-on-black crime, and given that the pool of possible jurors is 60 to 70 percent black, Baltimore prosecutors take almost every case into court with the knowledge that the crime will be seen through the lens of the black community’s historical suspicion of a white-controlled police department and court system. The testimony of a black officer or detective is therefore considered necessary in many cases, a counterweight to the young defendant who, following his attorney’s advice, is wearing his Sunday best and carrying the family Bible to and from court. That the victims are also black matters less; after all, they’re not around to set such a good example in front of the jurors.
The effect of race on the judicial system is freely acknowledged by prosecutors and defense attorneys-black and white alike-although the issue is rarely raised directly in court. The better lawyers, whatever their color, refuse to manipulate jurors through racial distinctions; the others can do so with even the most indirect suggestions. Race is instead a tacit presence that accompanies almost every panel of twelve into a Baltimore jury room. Once, in a rare display, a black defense attorney actually pointed to her own forearm while giving closing arguments to an all-black panel: “Brothers and sisters,” she said, as two white detectives went out of their minds in the back row of the gallery, “I think we all know what this case is about.”
Still, it would be wrong to suggest that Baltimore’s juries have become more lenient simply because they have become more black. Suspicion of the legal system within the black community is a real phenomenon, but veteran prosecutors can tell you that some of the best panels they’ve ever had have been all-black, whereas some of the worst and most indifferent have had a white majority. More than color, what has crippled the jury system in Baltimore is a factor that crosses all racial boundaries: television.
Pick any twelve people from Baltimore-from the black sections of Ashburton and Cherry Hill, from all-white Highlandtown or Hamilton-and chances are, you will come up with a few intelligent, discerning citizens. Some may have finished high school, one or two may have been to college. Most will be working folk, only a few will be skilled professionals. Baltimore is a blue-collar town, a stretch of the East Coast rust belt that never recovered when American steel and shipping began their downward spirals. Its population is underemployed, and it remains one of America’s most undereducated cities. Taxpayer flight has continued for more than two decades, and the vast majority of Baltimore’s white and black middle and upper classes now reside outside the city proper. They are, in essence, the stuff from which county juries are made.
As a result, most city folk go into a jury room with no greater sophistication about crime and punishment than can be gleaned from a 19-inch television screen. More than anything else, it’s the cathode-ray tube-not the prosecutor, not the defense attorney, certainly not the evidence-that gives a Baltimore juror his mind-set. Television ensures that criminal juries are empaneled with ridiculous expectations. Jurors want to see the murder-see it played out in front of their eyes on videotape in slow motion or, at the very least, see the guilty party fall to his knees at the witness stand, begging for mercy. Never mind that fingerprints are recovered in less than 10 percent of criminal cases, the average juror wants fingerprints on the gun, fingerprints on the knife, fingerprints on every door handle, window and house key. Never mind that the trace lab rarely makes a case, a juror nonetheless wants to see hairs and fibers and shoe prints and every other shard of science gleaned from Hawaii Five-O reruns. When a case does come complete with an excess of witnesses and physical evidence, then jurors demand a motive, a reason, a meaning to a murder that has otherwise been proven. And on those rare occasions when jurors are satisfied that the right man has actually been locked up for the right murder, they want to be assured that the defendant is truly a bad person and that they themselves are not bad people for doing this terrible thing to him.
To provide, in real life, the utter certainty about crime and culpability that pervades television is impossible. Nor is it easy to rid a juror of such expectations, although veteran prosecutors never lack for trying. In Baltimore, state’s attorneys routinely call fingerprint experts to the stand in those cases in which no fingerprint evidence exists:
If you would, please explain to the jury how often fingerprints are recovered at crime scenes and how often they are not recovered. Explain how it is that many people, depending on their biochemistry at the time of the incident, do not leave detectable fingerprints. Explain how fingerprints can be obliterated and smudged. Explain how atmospheric conditions affect fingerprints. Explain just how rare it is to pull a fingerprint off a knife hilt or gun butt.
Similarly, the detectives themselves come to the stand to fight a losing battle with the last six episodes of L.A. Law and other network fare in which the lawyers-better-looking lawyers than we have in court today, mind you-always parade before the jury with guns and knives bagged and tagged and labeled Exhibit 1A.
A good defense attorney can blow ten minutes of smoke by glaring at a detective who tries to explain that weapons have a nasty habit of leaving the crime scene before the police arrive.
You mean you never recovered the murder weapon? This jury is supposed to convict my client without a murder weapon? What do you mean, it could be anywhere? Are you trying to tell us that after committing an act of murder, the defendant might have actually run away? And taken the gun with him? And then hidden it? Or thrown it from the Curtis Bay bridge?
On Columbo, the gun is always in the liquor cabinet behind the vermouth. But you didn’t check behind the defendant’s vermouth, did you, detective? No, you don’t have the murder weapon. Your honor, I move that we unshackle this poor innocent waif and send him back to his loving family.
In the minds of Baltimore’s prosecutors and detectives, at least, television has utterly shattered the notion of a thinking jury, strangled it with plot lines in which all ambiguity is obliterated and all questions answered. As a result, those charged with punishing the act of murder in Baltimore no longer believe in all that Norman Rockwell business about twelve angry men in shirtsleeves, arguing in sticky heat over the essential evidence. In the real world, it’s more like a dozen brain-deads telling each other that the defendant seems like a nice, quiet young man, then laughing at the prosecutor’s choice of tie. Defense attorneys are quick to call such thinking sour grapes, but in truth, the faithlessness that veteran prosecutors and detectives feel for the jury system goes deeper than that. The argument isn’t that the government should win every murder trial; the system isn’t built that way. But does anyone really believe that 45 percent of the homicide defendants brought to a court trial-the last stretch of the legal system’s long, thinning bottleneck-are in fact innocent?