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Atlantic Monthly Sidebar

December 1974

Who Killed Harry Gleason?

Lawyers may not serve on American juries, and jurors may not ask lawyer-like questions. "Most lawyers would rather have juries grope in the dark than exercise an independent judgment," says the author, after serving on the jury of "a typical New York murder" trial. So the "truth" must be discerned on the basis of selected and conflicting evidence.

by Andrew Hacker

It 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" case.

"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 end.

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 neighborhood.

(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 neighborhood.)

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 blindfold."

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 jury.

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 wants.)

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 subway schedules.

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 stage.

"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 crime.

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.
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