t was late enough for The Late Show: drawing close to 2:00 A.M. The setting
would be familiar to a faithful viewer: a cavernous chamber in Manhattan's
criminal courts building. All eyes were on the man who had risen in his place.
"Your Honor," he was saying, "we have reached a verdict."
What made the occasion exceptional was that I was the one saying those words.
Later, when people asked me how I had spent my summer vacation, I had only to
murmur "murder trial." Beside that, nude bathing in Dubrovnik pales into
insignificance. Everyone wanted to hear more. We all know about crime in the
streets. But how many of us take part in the final chapter? It was a
fascinating experience, but a disquieting one as well, raising some serious
questions about the role of juries in our judicial system. I have come to the
conclusion that court procedures do little to encourage sound verdicts. Justice
does get done, but as often by accident as by design.
By making inquiries, I later learned that courts in every state treat juries in
much the same way. Citizens are regarded as sufficiently mature to deliver the
final verdict, but not adult enough for participation in the proceedings. All
this will become clear as I describe what I have come to think of as "my"
"A typical New York murder," was the general opinion. This one didn't even make
the inside pages. Fortunately, it was not one of those brutal slayings where a
holdup man guns down his victim. Nor had it finished off a quarrel among
friends or relatives. Rather, it was the cast of characters that made this
murder unsurprising: a sampling of the pimps, prostitutes, and addicts who
frequent the city's street corners. People one expects will come to no good
Everyone agreed that Harry Gleason had not shot himself. The question was
whether Fred Carter had fired the fatal bullet. The prosecutor said he had, and
claimed enough evidence for a guilty verdict. The defense insisted on Carter's
innocence. The police had arrested the wrong man, they said; the real killer
was still at large. We had to decide which story to believe, which meant we had
to reconstruct what had occurred on a dark night, over a year earlier, in a
neighborhood none of us knew well. If we voted one way. Fred Carter could spend
the rest of his life in a state penitentiary. If we voted him innocent, he
would be back on the street by nightfall. Jurors are not allowed to say "pass,"
or "no opinion." They must take a specific stand on every ballot.
The scene, which we were warned not to visit, was an unmemorable stretch of
Fourteenth Street, consisting of faded shops, several bars, and a last-run
movie theater. Late at night it becomes something of a tenderloin, with sex and
drugs available at bargain prices. The action began at about 3:00 A.M. on a
warm May morning. I have put the recounting in italics because it came from alleged eyewitnesses, who
appeared only for the prosecution. They just might have been lying.
Seven or eight people are standing on the sidewalk chatting, sharing a
bottle, and passing the time as they often do while the rest of the city
sleeps. Among those present are Miguel and Ramon, later to testify in court.
They belong to methadone programs, but are otherwise unemployed. Also Sharon
and Rita, both prostitutes. Sharon, who would be another prosecution witness,
is a habitué of the area. Rita has just arrived and is the event of the evening
in hot pants and see-through blouse. Harry Gleason, soon to be the decedent,
stands on the edge of the group. He does odd jobs at a hot-pillow hotel across
the street, and is Sharon's current boyfriend. About fifty yards down the block
in the Jefferson Bar, sits Fred Carter, Rita's pimp and also new to the
(If you're at all like my friends, you'll want to know everyone's race--no
matter how much I insist it had no bearing on the case. Ramon and Miguel were
Puerto Rican. Sharon and Rita were white. Gleason and Carter were black.
Whatever its other qualities, Fourteenth Street is an integrated
Rita approaches Miguel with a proposition. ("There was this white girl
asked me if I wanted to go with her.") He rebuffs her, but good-naturedly. ("My
----- is sick.") She speculates on his sexual proclivities. ("She insulted my
mother.") He slaps her face. Hard. She calls down the street for her protector.
("Freddie! Kill him!") Carter dashes out of the Jefferson Bar, gun in hand
firing point-blank as he runs toward the group. Harry Gleason, an onlooker at
the argument, falls to the pavement, blood streaming from his head. Carter
turns and flees down a subway staircase which is just a few yards away.
The rest of the recital can revert to regular type, as both sides tended to
agree on what happened next.
It was just one of those nights. A policeman happened to be on the subway
platform as he saw Carter leap over the turnstile. He had heard the gunfire up
on the street, and assumed Carter's arrival had something to do with those
shots. He recalled Carter's behavior, which seemed just a little unusual. ("He
went back and forth along the platform. He seemed to be trying to conceal an
object.") At about that time, a patrol car pulled up at the shooting scene,
having been just a block away, and the men in the car having heard the firing.
At the behest of bystanders, another patrolman descended to the subway
platform, where he also saw Carter, now seated on a bench. ("I saw him make a
downward motion with his hand. He had something in his hand. He was putting
something down.") Still more policemen arrived, and took Carter into custody.
The man from the patrol car remained behind and looked under the bench, where
he saw a paper bag. "In it I found a .22 revolver," he told us. "There were six
spent rounds in the chamber."
Twenty days later Harry Gleason died in St. Vincent's Hospital. The autopsy by
the medical examiner revealed a .22 slug in his brain. However, its riflings
had been twisted so out of shape that they could not be matched to the gun
under the subway bench. This is often the case, we were told.
That was the story we heard: from Ramon, Miguel, Sharon, and various police
personnel who had figured in the incident. All of them, as I have said,
appeared on behalf of the prosecution. Fred Carter never took the stand, which
was his right, and in no way to be held against him. His lawyers--two young men
appointed by the court--tried every tactic to discredit the prosecution's
witness. They were especially rough on Sharon, who had given the most detailed
account of the slaying. Tall, soft-spoken, and reminiscent of Gene Tierney, she
engaged our attention (and fed some fantasies) during her two days on the
stand. Cross-examination revealed that she and Ramon and Miguel all had
narcotics charges hanging over them, a good reason for cooperating with the
district attorney. Harry Gleason had been her boyfriend. Fred Carter had
installed an attractive competitor on her corner. (How attractive we could not
say. Rita never appeared in court.)
Even so, only minor inconsistencies emerged. Sharon's testimony agreed with
that of Ramon and Miguel, and all three tended to reiterate the statements they
gave at the station house shortly after the shooting. It was only in its
summation that the defense hinted at a more somber side to the story. "I
implore you to believe that Fred Carter is merely a pawn," his lawyer said. "He
has been fingered maliciously by people who have an intense interest in
protecting themselves." (Could he be trying to tell us something?)
We were a responsible jury, and knew we had to begin by presuming Carter's
innocence. The burden lay on the prosecution to prove his guilt, and beyond a
reasonable doubt. But could he really be innocent? Even supposing that Sharon
and her friends were practiced liars who wanted to build up goodwill at the
D.A.'s office? This man was caught running away from a murder scene and
concealing a revolver containing six spent cartridges. Talk of red-handed, of a
case being open and shut....Our first ballot came out six-six. Half of us
wanted to acquit Carter, to let him back on the street by sundown.
Might he have been the wrong man after all? Let's try another script for size.
Again in italics, because it also may be totally fictional.
Ramon or Miguel or one of their friends is showing around a .22 revolver
which has recently come into his possession. The gun goes off accidentally
hitting Harry Gleason. Fred Carter, standing outside the Jefferson Bar, hears
the gunfire. What would you do if you were Carter, professional pimp, and with
a gun in your pocket? So he hurtles down the subway, unlucky man, into the arms
of two policemen. Back upstairs, Ramon and the others decide not to risk
convincing the police that their gun went off by accident. Far easier to pin
the whole thing on Fred Carter. Which they did.
There could easily have been two .22 revolvers: the one that killed
Gleason, and another carried by Carter. The ballistics expert told us there
were "probably a million" such guns in the city. Certainly two of them could
have been on Fourteenth Street that night. It's that kind of area. The spent
shells in Carter's gun? He could have finished up some target practice earlier
that day and forgotten to reload. Did we want to retire a man to Attica because
he forgot to shake out a few empty cartridges?
This rendering dovetailed with the defense view that Carter had been "fingered"
for a slaying he never committed. We debated for twelve more hours, taking at
least three additional ballots, before we reached a twelve-zero decision. Very
weary, and not entirely happy, we filed into the half-lit courtroom and
reported our verdict.
Our judge was superb. He had all the virtues we hear tell of--dignity,
compassion, learning--but never expect to meet in real life. "You have heard
the evidence," he instructed us. "You are the exclusive judges of the facts."
Yes, we had heard the evidence--if by that one means the answers witnesses gave
when questioned by the attorneys. Yes, we were judges of the facts--if by that
is meant information presented to us without inquiring about our needs or
preferences. We were being asked to paint a picture, but we could use only the
colors and canvas chosen for us.
The so-called "adversary system" assumes that a two-sided contest will bring
out enough information for either a conviction or an acquittal. (Notice how
judges keep sending undecided juries back to deliberate further.) Partial
truths, defective memories, even outright lies will be exposed by
cross-examination, or so, at least, the system supposes. The method has a long
and honorable history. At the same time, its premises do not always succeed in
practice. Let's take a closer look at the participants.
The prosecutor confines himself to information he thinks likely to bring in a
conviction. Defense lawyers present only evidence which makes their client look
innocent. Neither side cares about the whole truth. In fact, both feel free to
misrepresent appearances if that suits their purposes. (The most notorious
instances involve asking rape victims about their earlier sexual experiences.)
The judge remains neutral. He is there to ensure a fair trial: to safeguard the
rights of the defendant and to allow the prosecution its statutory powers. But
fairness need not entail airing all the facts. Unlike his European colleagues.
he cannot put questions of his own to the witnesses. All he can do is rephrase
a lawyer's question in an effort to get a more precise response. And the jury?
We were the only ones in the room obliged to find out what had actually
happened. To perform that duty, we were given good seats and the privilege of
listening, And listen we did. For more than a week. Yet during our
deliberations, we repeatedly found ourselves running into dead ends. Several
key questions had been neither raised nor answered during the trial. It was at
that point we became aware that there can be facts which neither side wishes to
elicit because both the defense and the prosecution, each for its own reasons,
regard the information as harmful to their case.
For example, neither side asked the policeman who found Carter's gun whether it
showed signs of having been fired within the previous few minutes. Or, again,
no one asked the surgeon at St. Vincent's Hospital to describe Harry Gleason's
wound. The entry mark of the bullet would indicate whether it had been fired
from a few inches away or had come from much farther down the block. And no one
asked whether Sharon, Ramon, and Miguel had been left together long enough to
agree on a frame-up. A patrol car took the three of them to the station house,
where they dictated statements to a detective. Those depositions paralleled the
story they told us in court. But suppose they had decided to frame Carter
before they made those statements?
None of us had the temerity to ask these questions ourselves. We gathered quite
early in the proceedings that neither the judge nor the attorneys had any
desire to hear from us. They looked upon the courtroom as their personal (and
professional) preserve. We were expected to blend with the paneling. Yet there
are occasions when jurors feel they need more information. I am not referring
to hearsay, or past arrest records, or other impermissible matters. I have in
mind factual questions of the kind I have just mentioned. So far, I have yet to
hear a strong case for withholding such testimony. The suspicion arises that
most lawyers would rather have juries grope in the dark than exercise an
independent judgment. "This should come as no surprise," Charles Alan Wright
once wrote, "in a society which takes pride in the image of Justice wearing a
Of course jurors should be permitted to ask questions, as they are in English
courts, with their participation woven into the trial format. Aryeh Neier, who
heads the American Civil Liberties Union, points out that "a lawyer may have a
strategy he wants to pursue and interruptions would undermine that plan." I am
sure that jurors would be willing to wait--although I might add that on the
Supreme Court the justices feel free to break in on counsel during oral
arguments. Still, when the lawyers have finished with each witness, there is no
reason why the judge cannot declare a short break, during which jurors can
write out their questions.
All the same, Neier has misgivings. "There may be certain points a defense
attorney doesn't want to bring up." he says. "Were a juror to raise those
matters, it might hamper the defense of the accused." And so it might. But the
jury is there to uncover the truth, not to make things easier for the
defendant. (After all, some defendants are guilty.) In France, the judges may
take over questioning if they feel that one or both of the attorneys have shown
insufficient zeal in their probing. In this country judges must remain silent,
even if one side has a wholly indifferent counsel. So the task falls to the
I will agree that questions should be written out and sent up to the judge, who
would screen the phrasing before asking them. We don't want a juror blurting
out anything which might imply some prejudice on his part. ("Precisely where
were you standing when the defendant fired the gun?") A succession of notes
might be necessary especially if the witness is unresponsive, or if the juror
has an abstruse point he wants to pursue. (In difficult situations the juror
could come up and sit beside the judge, and explain sotto voce what he
Needless to say, the attorneys must be allowed to object to jurors' questions,
and to argue for their withdrawal, even if the judge has approved them. But I
am also taken with the idea of the jury having its own counsel, who would try
to persuade the judge that a question is indeed permissible. Thus, if the
prosecutor cited Connecticut vs. Caldwell to support his objection, the jury's
counsel might counter with Miles vs. Massachusetts.
Take another matter that appears easily remediable on its surface. Jurors are
not allowed to take notes. This rule prevails no matter how long the trial, or
complicated the testimony, or ambiguous the law. Our case was relatively short,
but it still added up to forty hours of unrelieved listening, the equivalent of
a semester's worth of lectures. (Imagine not taking a single note during a
college course and then being expected to do justice to a final exam.) Justices
on the Supreme Court of the United States jot down points while hearing oral
argument. But we lesser beings were expected to retain evidence and arguments
which amounted to 1049 pages of typed transcript, and included testimony from a
pathologist, a ballistics expert, and the man who arranges the New York City
In consequence, much of our time was spent jogging one another's memories in
the hope that someone would recall a particular remark. We filed out every so
often to have the stenographer read us some portion of her tape. But the
typical jury doesn't do this more than once or twice ("We don't want to bother
them"), nor is a copy of the transcript placed in the jury room for ready
reference. Reconstructing the episode on Fourteenth Street was difficult enough
without also having to argue over what had been said within the courtroom. Did
I say this was a simple request? Wait until you hear from the lawyers. "A juror
who can quote from ampler notes will have an undue influence over the others,"
one said to me. "If no one has notes, then everyone is on the same plane." More
or less a memorization contest, with no extrinsic aids. I find it a bit curious
that lawyers, who only rarely serve on juries, speak on this subject so
knowingly. Some members do assume a degree of authority within the group. This
certainly happened with us. But the respect they commanded stemmed from
personal qualities, which far outweigh jottings anyone might have in a
notebook. Furthermore, having the transcript read aloud to us didn't really
satisfy our needs. Our personal notes would also have included observations on
appearances, demeanor, and other items that don't get into the stenotyped
record. Such clues are especially important when you have to agree on whether
one witness is lying or another is telling the truth.
"They'll doodle, or write out shopping lists," objected another counselor of my
acquaintance, who admitted that he occasionally did just that when at the
defense table. Yet without pencil and paper, a juror can still let his mind
wander, daydreaming or studying the spectators. If lawyers don't like doodles,
they could devote more care to ensuring that the jurors understand each phase
of the questioning. We suspected that many of the colloquies were not intended
for us at all, but were for scrutiny by an appellate bench at some later
"If we had only heard from so-and-so," was a repeated refrain in the jury room.
A jury should be able to subpoena witnesses of its own if, during
deliberations, it concludes that their testimony will prove helpful. (Until
such time as we have a counsel, the questioning would have to be done by the
judge, with jury members sending up the questions.) For example, we would have
called the doctor who cleaned up Harry Gleason's head wound.
We suspected that neither the defense nor the prosecution wanted to put Rita on
the stand, despite the fact that she had played a leading role in the drama.
From what we heard, she seemed as likely to harm one side as the other, and
with no forewarning. Well, the twelve of us had some questions we wanted to ask
her, regardless of how her testimony redounded. Even if her fealty to Carter
had grown threadbare, she was not a Fourteenth Street regular, and had no
motive for joining in a frame-up. And even if she lied, or proved unresponsive,
she was still part of the mosaic. Her nonappearance left so glaring a hole that
at times we felt the impossible was being asked of us. Needless to say, no one
inquired whether we wanted to meet Rita, nor did anyone explain her absence. It
was a bit like Carmen without Carmen.
Today's jurors are better informed and more independent-minded than in the
past. They realize that lawyers may overlook threads in an argument, that even
a well-matched battle will reveal only part of the story. Participation by the
jury would remind lawyers that those twelve seats contain sentient human
beings, not stage props from the Perry Mason warehouse. The stakes are real.
Jurors resent being treated like children.
Unlike bar associations and civil liberties groups, jurors are not organized,
and have no influence over the judicial process. Few citizens serve on more
than one criminal case during their entire lives. As a result, they express
their dissatisfactions the only way they can: by failing to agree on a verdict,
or voting for acquittal because so much information is missing. (In murder
trials in New York one defendant in three is acquitted, and hung juries are
increasingly common.) Obviously I am not appealing for more convictions if they
have to be based on guesswork. Nor do I want jurors prying into matters which
are irrelevant or prejudicial. We should be able to rely on our judges to
prevent that, just as they now check overzealous attorneys.
Whether in large cities, like Washington and Detroit, or in smaller towns, such
as Harrisburg and Gainesville, jurors have shown a good understanding of due
process and constitutional safeguards. They have long since passed their
probation period, and are ready for heavier responsibilities, not for their own
sake, but to satisfy the oath they took when accepting their seats: to arrive
at the truth about what really happened during that split second we call a
Our verdict? We found Fred Carter guilty of murder. And beyond a reasonable
doubt, despite all the questions left dangling. We just couldn't attribute
those empty cartridges to target practice earlier that afternoon.
Copyright © 1974 by Andrew Hacker. All rights reserved.