ALARM INSPIRES BELIEF

"Danger invites rescue," said Justice Benjamin Cardozo.

"Alarm inspires belief," says yours truly.

Recently two young men with clean records were accused of armed robbery.  They'd dealt one Friday afternoon with a couple of peddlers in a van who drive up to motorists at stop-lights to sell stereo speakers for a few hundred dollars a pair.  Acting excitedly, the peddlers would make a pitch claiming that these were the last speakers on the van, they'd been loaded by mistake, the boss didn't know they were there, so we can make you a real deal.  They flashed a roll of bills which they said came from earlier sales to show that the speakers worth a lot.  The two young men appeared interested, but after looking, they didn't buy.  The peddlers followed them, still trying to make the sale.

Later the peddlers claimed that the two young men robbed them of eleven hundred dollars at gunpoint.

They called the police and an officer listened to two excited stories of a fresh robbery with guns.  She immediately ordered roadblocks, sent out an all-points-bulletin, and had no trouble locating the two young men since they had told the salesmen they were Palestinian, when asked, and were headed to the hospital two blocks away to have a cast removed from the right hand of one of them, from a broken wrist.  The police searched the car, persons, and homes of the two young men but found no guns or money. 

At the police station, the two youths were interviewed.  The first one lied, denying being at the hospital on the day of the claimed robbery since, as it later was revealed, he'd lent his medical membership card to the other youth so he could have his cast removed.  The other young man admitted being at the hospital to have his cast removed using a card that didn't belong to him, but denied that there was any robbery.

"What about this $1,300 cash deposit slip in your wallet?" asked the officer. 

"A friend repaid a loan," the young man said, and on Friday, the day of the alleged robbery, was when he got around to depositing it in the bank.

"Okay, who is your friend?" asked the officer, we can call him.

The friend was named and the officer called his house right away.  The friend denied receiving or repaying any loan.

Police then arrested both young men for robbery and the judge set the bail at $100,000.  A double conviction for armed robbery would put them in state prison for many years.

Counsel for the co-defendant and I told the district attorney that the accusation was false but she didn't want to hear it.  In opening statement at trial I predicted to the jury that it was going to witness two con-men who posed as peddlers, even though I had never seen them before, since the preliminary hearing was conducted by the district attorney under Prop. 115 in a way that the investigating officer was permitted to repeat what they had told her.  Allowable hearsay, in other words.

I told the jurors that there had been no robbery, it was made up, a staged claim to cover the embezzlement by the peddlers of the days receipts.  The peddlers blamed the two innocent young men for wasting their time and making them lose two bonuses, one for emptying the truck and another for the week's sales, I explained, and then I tried to prove it out of the mouths of the peddlers when they took the witness stand.  They were not going to want to help me do this.

I asked them each to repeat their excited pitches to the motorists the day of the alleged robbery, complete with the false claims that the speakers in the van were stolen, for the jury.  The two peddlers were very good actors indeed.  They proudly turned on the excitement needed to persuade customers that the speakers were desirable and valuable using a false story. 

Using company records that we had subpoenaed, I forced the peddlers to admit that until they met my client and his friend, they were expecting to receive bonuses, which they'd now lost because of the time spent in dealing, unsuccessfully, as it turned out, with the two defendants for a long time on the late afternoon of the Friday of the claimed robbery. 

On further cross-examination, one "victim" said the robbers used two handguns, but the second "victim" said there was only one.

One said both guns were black.

The other said he saw a silver gun.

One said that the "robber" stole $1,100 from his wallet, but when asked where he'd kept his fat flash roll, the one he displayed to motorists, he denied having a wallet.

You could see the jurors beginning to smell a rat, as they looked at me in a knowing sort of way, which told me I was getting warm.

I called as a witness my client's friend, the one who denied repaying $1,300 when the police called asking about the loan repayment client had deposited the day of the alleged robbery.  Now he admitted repaying the loan. 

Why had he lied about repaying a loan?

Well, he said, when the police called, his wife answered the phone and said the police wanted to talk to him about some money he'd allegedly borrowed and repaid.  The friend hadn't told his wife that he'd borrowed $1,300 in order to buy furniture when they recently married and hadn't wanted his wife to know she'd married a guy who was broke.  So he'd lied to her and then felt forced to repeat the lie to the police since the wife was standing by the phone when he talked to them.

If there had been no robbery, as my client claimed, that meant the "victims" still had the money, the fat flash roll of bills they showed motorists, at the time they reported the robbery to the police.  Had the police searched them to see if they had it?  The police never routinely search the person they believe is the victim of a crime.  The police tend to believe it when a merchant says he's been robbed by holdup men.  The police then try to go after the holdup men, not the victim.  So I figured that I'd like to ask the investigating officer who took the report whether she'd ever searched the alleged victims or the van for the money claimed to be missing.

The officer testified under oath, only a few months after the alleged crime occurred, that she had not searched either alleged victim or the van.

That meant that the "victims" could very well have embezzled the $1,100 of the company's money and turned in a false report in an excited way -- these were skilled actors in their own way -- and the police would never have known the difference.  The police would be victimized by their own pre-conceptions that merchants never claim falsely that they've been robbed at gunpoint.

The investigating officer had swallowed a hook, in my view, baited by two pros.  Her sense of alarm inspired the snap belief that the robbery claims were true without investigating.  This caused her to fail to smell the rat that I smelled.  She did however, note in her police report the conflict in the number and color of the guns allegedly used by the alleged robbers.  She excused the inconsistencies as innocent misrecollections caused by the stress and excitement of being robbed, instead of seeing them as tell-tales that there had been no robbery at all.  The officer had no way of knowing what the peddlers knew all too clearly, that they'd just lost the week's bonuses.  Nor did the officer know that they made their living displaying feigned excitement in order to bait customers into believing they were about to receive a bargain.

Finally, when one suspect was caught lying about being at the hospital when the other admitted being there to have a cast removed, and his witness to a claimed loan repayment denied the loan, these facts clinched the idea that these suspects must be lying when denying they'd committed the alleged robbery that would put them in prison for over twenty years each.  Those were the stakes in taking this case to trial.

At the trial, I wanted to establish to the jury's satisfaction that the police didn't actually know whether the two peddlers were real victims, as claimed, or fake victims, embezzlers, really, as claimed by me.  So I needed to show that the investigating officer who had taken the report, put out the all-points-bulletin and questioned the peddlers and believed that there was a real robbery had failed to search the peddlers or the van to see whether they still had the money they claimed was stolen by my client and his friend at gunpoint.

Officer, did you search the two victims or their van, I asked.

"Oh yes, I certainly did," she replied, "there was no money."

Oh, really, I thought, is that so?

"Officer," I asked, when you testified under oath at the preliminary hearing, which occurred two months after you interviewed the two peddlers, you told the court the truth, did you not?

"Oh, yes," replied the officer.

"And when you testified at the preliminary hearing only two months after the investigation which you conducted, the events were very fresh in your mind, were they not?"

"Oh, yes, I had a good recollection," she testified.

"Officer, do you recall testifying at the preliminary hearing which occurred shortly after the incident to which you testified that you did NOT search the alleged victims or their van?"

"No, I don't recall so testifying," she replied.

"Well, here, let me read it to you from the certified transcript of your testimony which, as you know, was taken down and put into book form by the Certified Shorthand Reporter employed by the court to take down every word." 

And then I read the damning testimony of the officer from the preliminary hearing that she had never searched the alleged victims or their van.

"Which is it, officer, that your memory was better at the preliminary hearing two months after the incident or at the trial today, a year and two months after the incident?" I asked.

She didn't need to answer the rhetorical question, because just asking it allowed the jury to supply the correct answer.  The officer was forced to admit that her recollection was better then, so the jury was free to disregard her testimony at trial that she searched the peddlers when she didn't.

I've always liked that I had the foresight, based on experience, to have asked that question about searching the victims of the officer at the preliminary hearing, hoping to store up the answer for later use at trial.

Her current testimony had been either made up or the product of misrecollection, albeit misrecollection in favor of what she wanted to prove however false.

While the prosecution had made out my client's main witness to be a person willing to lie to the police about the loan repayment, and the co-defendant to be lying about being near the hospital, and my client willing to commit fraud to obtain medical attention using his friends hospital membership card, I'd shown that the police were just as human and willing to falsely report in order to advance their agenda, too, it's sad to have to reveal sometimes happens.  And finally, I'd put on a convincing demonstration in the courtroom that the peddlers were in fact flim-flam artists whose success in selling stereo speakers from the van depended on how successful was their lying act about them having been put on the truck by an alleged mistake that the boss didn't know about, hence we can sell them more cheaply so the customer can get this really great deal.   

***
There was one other thing I did based on experience that I don't think a lot of attorneys might have thought to do.  But I've tried a lot of jury trials and have learned to prepare for the unexpected.

As soon as my client's father called me for help, I interviewed his son in the jail, before he made bail a week later.  The son told me there was no robbery and he didn't know why the peddlers claimed otherwise.  After the arraignment the next day in court, when I was given a copy of the police report, I went to the locations mentioned in the report and took photographs.  I wasn't exactly sure why, except that eventually they might come in handy, you never knew.

When the trial came up over a year later, on cross-examination I asked one of the alleged victims  where he had parked the van so that he could show my client the speakers, but instead had been robbed. The "victim" put a mark on a diagram we'd sketched in order to show the jury where things were said to have happened. 

"Well, then, anyone passing by could have seen you being robbed at gunpoint in plain daylight in open view, isn't that right?" I asked.

"Oh, no," said the victim, "because there were tall bushes nearby which would have blocked the view.  I saw them yesterday when I went to the scene with the district attorney to refresh my recollection."

I was permitted then to introduce the photos taken by me over a year earlier showing the bushes to have been low and close to the ground. Had there been a real robbery, anyone passing by on the street or the parking lot where the van was located would have been able to see men with guns and call the police.  It seemed unlikely that anyone would commit a robbery with guns in broadlight if they wanted to get away with it and the money.

***

In this case, the alarm of the police that a robbery at gunpoint had just occurred had inspired belief.

Had the police fooled themselves? 

Well, they had help from a couple of professional con-men, but they cooperated by suspending their sense of disbelief, the one they acted upon in failing to believe the suspects who denied robbing anyone.  The police also failed to check how it was that one "victim" saw only one silver-colored gun while the other claimed he saw two black guns.  One might expect the victim of a robbery at gunpoint to be quite certain what the gun that might have killed him if he failed to cooperate looked like with some degree of accuracy.

The jury voted 8:4 to acquit.  The next time the case was called, the district attorney dismissed the case.  A year or two later I was browsing one Saturday in one of the big Barnes & Noble bookstores in the area when I looked up and saw a woman who looked somewhat familiar, and we said hello to one another, as I looked familiar to her, she said, as we tried to figure out where we had met.  She turned out to be one of the jurors in that case.  Whatever happened to my client, she asked.  Thank you for asking, I replied, but the district attorney dismissed the case.

Her face fell with apparent disappointment.  She must've been one of the four.  "You seem a bit disappointed," I said, you must've been one of the four who thought he was a robber.   Well, she said, she wasn't really sure, but voted guilty anyway figuring that since it was clear the two young men on trial hadn't been in trouble before, that the judge would probably just put them on probation.

Jurors are not told what will happen to people they find guilty.  They are told they must not speculate about that, since that is left to other authorities to decide.  Jurors are told that they may not convict unless and until the district attorney proves to the satisfaction of all twelve jurors that a crime was committed and that the defendant committed it according to proof that satisfies their minds beyond a reasonable doubt and to a moral certainty that the allegation is true.  This juror hadn't done that.  She'd disregarded her oath as a juror and, perhaps because the conflicting evidence was too hard for her to sort out, or believing she wanted to support the police in making their arrest, or the district attorney in bringing this prosecution, decided that no harm would be done to the defendants if she found them both guilty of armed robbery.

Attorneys make an effort to see that each component of our criminal justice system performs according to reasonable legal expectations.  Judges instruct juries to base their decisions on a good faith belief in what they find to be the facts according to the law given by the court.  When a juror disregards those instructions and convicts based on a belief that a conviction carries no significant consequences, she subverts the criminal justice system as much as a witness who commits perjury or a judge who takes a bribe.

I told the former juror it was nice to see her again and moved on.  But I've never forgotten how close my client came to going away for twenty years, but for the fact that eight other jurors found a reasonable doubt and the district attorney supervisors thought better of allowing their trial deputy re-try the case and dismissed.  I heard later that she didn't much like prosecuting after all and soon thereafter left the district attorneys office.  I served as a deputy district attorney for seven years.   My co-counsel, an excellent attorney called Bud Meloling, who taught trial practice at the law school where I now teach Constitutional Law, had been supervising attorney at the Alameda County District Attorneys office for many years before we tried this case.  We both agreed that we'd never seen a real robbery case quite like this, despite having reviewed thousands of robberies and other crimes between us.  But we couldn't get our trial deputy to listen to reason.  So we had to try the case, or rather the clients did if they didn't want to spend the next two decades behind bars.  That put a lot of pressure on the attorneys to come through, and, fortunately, we were able to do so.

It is necessary, after experiences such as this, and this is not the only one, to ask what lessons can be learned.  This is one reason why I teach and write, hoping to pass on to students who may become prosecutors, defense attorneys, and judges, to beware of taking things at face value.  Good judgment requires not only that you ask questions about things that seem obvious, such as whether the claim of a rape or a robbery is true (I prosecuted rape cases as head of the SFDA rape prosecution unit for several years), and so, why so, and if not, why not.

The rule to apply is this, and it comes from a noted scientist, Richard Feynman, who said: 

"The first principle is that you must not fool yourself, but remember, you are the easiest one to fool."

I would suggest this follow-up:

"When someone tells you something you are prepared to believe, check it out anyway, especially if you are a government employee whose business it is to lock up criminals for many years at a time."

And if you are a juror, please obey the rules, which are there to protect the innocent, even if you believe that many people whom the police arrest and the district attorney prosecutes are guilty of something and won't go away for a long time.  Twenty years is a long time, and you are told not to consider the consequences of your fact-finding.