Monday – Jury Selection
The prosecutor had a story to tell: One night, two years ago, Joe S was at home when his friend John M came over for a little bit. Joe’s wife Deanna S was at a family picnic with their 2 year old son. She called when she was pulling the car up to the house at around 10:30, asking Joe to come out and get the sleeping kid from the car and carry him up to the third floor bedroom.
So Joe get up, goes and gets the kid from the car, carries him upstairs, puts him in bed, and turns around — and sees two guys in the room, pointing guns at him.
They start to ask him to give them all his money, and Joe recognizes one… despite the fact that the alleged burglars are wearing bandannas that cover their mouths and noses and hats and/or hoodies that cover the tops of their heads. “Tommy,” he cries out. “Why are you doing this?”
According to the prosecutor, a struggle started. One of the burglars pulled out a baseball bat and hit Joe over the head several times. Hard.
Hearing the fighting, John runs up the stairs and tries to open the bedroom door, but the handle is stuck. A moment later the door opens, and out comes one of the assailants. John gets hit in the face. Fighting continues.
When police arrive on the scene later, they find blood all over the house, including blood in the living room where much of the fighting allegedly took place after the door opened, and a trail of blood running up the stairs.
There’s no doubt that something happened that night. Joe was taken to the hospital by ambulance and had to have surgery on his brain. After the operation he was in a coma for a week, and had to remain in the hospital for another 4 weeks. He still has an enormous scar on the side of his head, and when he touches that side of his head it squishes like a soft piece of fruit.
But we weren’t there to figure out if something happened. We were there to determine whether there was enough evidence that “Tommy” was one of the assailants to find him guilty of multiple criminal counts including burglary, robbery, aggravated assault, and illegal possession of a firearm.
I always kind of hope that I can get out of jury duty by writing on my questionnaire that I’m a “journalist,” or a “blogger.” The idea of sitting in judgment of others isn’t one that appeals to me — especially when the decision I make can put an innocent person in jail (or worse), or set a guilty person free.
But after reporting to jury duty Monday morning, I was in the first group of 50 people called to go into a courtroom and answer questions that would determine whether I’d sit on a jury. We were ushered into a smaller room where I got a bit of reading done while waiting for our court officer to show up, and eventually we were led into a courtroom where we were told that the case involved an alleged assault and robbery, and asked if we knew any of the people involved in the case.
After that, we were packed tightly into an even smaller room until we were called out one by one to answer questions put to us by the lawyers in the case, an assistant district attorney and a criminal defense lawyer.
When my turn came, I let both lawyers know that I recognized the defense lawyer, but didn’t know him well. “I used to work as a news reporter in the city, and I’m pretty sure I’ve put a microphone in front of your face at some point,” I said.
“I hope,” he replied, “I didn’t say anything to offend you. Do you remember what the case was?”
“Nothing like this… I’m pretty sure it was a corruption trial.”
That was a safe bet, since I haven’t covered a lot of trials in my time, and most of the cases I had followed involved political corruption — or more accurately “honest services fraud,” which is a fancy way of saying a politician deprived the citizens of their “honest services” as a public official, usually by taking bribes or performing political favors for some other inappropriate reason.
After this trial ended and we had a chance to speak with the attorneys, the defense counsel asked if I had ever remembered which trial he’d been involved in. I tried to make a point of not looking it up while I was serving, because jurors aren’t supposed to bring outside influences to their duties, but I was pretty sure I remembered vaguely that he’d represented one of the defendants involved in a massive corruption case that rocked City Hall about 7 years ago.
Anyway, that clearly wasn’t enough to get me dismissed from this jury. A moment later, after unsuccessfully trying to describe my wife’s job (it’s not just me, it takes her 20 minutes to answer the “what do you do?” question too!) I was led into a small room where the court officer told me that I was juror number 3, and I’d have to return after lunch.
The good news is that some nearby restaurants give jurors a 10 percent discount on lunch. The bad news is that Commonwealth Court jurors get just $9 per day for the first 3 days of service (and not much more than that for following days). So basically the court is only paying participants lunch money.
After lunch 12 jurors and 2 alternates were ushered into our seats where we heard the opening arguments. After the prosecutor outlined the story as he would present it, the defense attorney started to pick it apart.
His primary question at that point? How did the burglars magically appear in the house?
Good question, I figured… but I’m sure we’ll hear more about it tomorrow when we start hearing from witnesses. We’d already been told that testimony could keep us in court through Thursday.
Tuesday – Testimony
Joe S took the stand and told a story that sounded a lot like the one the prosecutor had outlined. The difference is that as jurors we’re instructed that nothing the lawyers or even the judge says counts as evidence. We can use opening and closing arguments as suggested frameworks for piecing together the evidence. But only the testimony of witnesses and the physical evidence and documents submitted count.
So we listened to Joe answer the prosecutor’s questions.
Joe had been at his grandmother’s house down the street earlier in the day, but was at home that evening, when John called up and asked if he could stop by. A little while later he does, and the two sit and talk for a while. The TV isn’t on, and they aren’t doing anything else.
When Joe was later taken to the hospital, his urine sample showed that he had smoked marijuana that day and taken a percocet (for which he did not have a prescription . He said he took the painkiller at work, where he installs floors for a living. He’d gotten it from a coworker — and when asked by an attorney and by the judge, he insisted he didn’t remember which coworker. The judge muttered “I think it’s perfectly clear what he’s doing,” which is to say he was lying to protect a friend.
If that’s the only thing he lies about on the stand, I can ignore it though, I figured. Who wouldn’t want to avoid incriminating a friend… and is this even relevant to the case anyway?
When he was questioned about the marijuana, he also tried to hedge a bit… but eventually admitted that he got it from his little brother.
It’s interesting though, that when asked if he and John were doing drugs together, Joe replied that he and John never did that… even though they had known each other for years, and Joe had been arrested 4 or 5 times for possession and John had been busted for dealing (percocet, among other things).
So Joe and John are talking and Deanna calls. They both go outside and while Joe takes the baby seat (and baby) from the car and carries it upstairs, John apparently hangs outside with Deanna to smoke a cigarette.
Joe puts the child down, turns around, sees two masked men with guns, and after they start asking him for money, he starts shouting “Tommy, Tommy I know you!”
They start struggling, he’s hit in the head with a bat. A moment later the door opens, and one of the assailants is putting a handcuff around John at the top of the stairs, and beating him. Joe and his assailant continue struggling, fall down the stairs, wrestle for a while, and eventually Joe breaks away and runs out the door and waits for the ambulance after shouting “call 911!”
He claims the burglars ran out the back door of the house, which was unlocked. The front door, on the other hand, he says was locked. He had let John in when he came, and had locked the door behind him. In order to run out through the front door, Joe says he had to unlock it again himself.
At no point, he says, did he see his wife (which already has me wondering how he knew he was waiting for an ambulance.
Joe says he was able to recognize Tommy because they’ve known each other for ages… although they haven’t spoken in about a year. The last time they saw each other, one had sold the other an Xbox, suggesting they had been on reasonably good terms.
And looking over at the defendant, Tommy does look like he’d be easy to recognize. We didn’t hear his voice, so we don’t know how distinctive that is. But he had dark, hollow eyes, a very thin nose… if this was someone you knew well, it’s reasonable to think you might be able to recognize him even if the only thing you could see were his eyes.
But it turns out there’s more to the story. Joe hadn’t just been busted for possession a few times. He’d also been asked by a local detective to act as a confidential informant, and to assist in setting up some drug buys to bust other dealers.
Tommy had done the same thing… with the same officer. What Joe says he didn’t know was that Tommy had set up one of those buys with John M, who was arrested and later sentenced to 13 – 21 months in prison.
John didn’t go to jail until several months after the incident we were there to hear about. But if Joe and John knew that Tommy was responsible for John’s arrest… that’s a pretty good reason to finger him for a crime, right?
Of course, that alone doesn’t really tell us anything. At this point all we know is that Joe lied to cover up where he got some percocet from, that he knew Tommy, and that’s it’s plausible he knew that Tommy had something to do with another friend’s arrest.
But something else interesting happened. The only defendant on trial was Tommy. Joe, John, and Deanna had told police officers that there were two people in the house — but that they only recognized one.
Tuesday, Joe tried to name that unidentified person. While referring to him at one point in his narrative, he casually called him Zachary H. Both attorneys jumped a little bit at that.
According to Joe, he didn’t know Zachary at the time, and still doesn’t know him — but he looked him up on Facebook and recognized him by his tattoos. He now seems quite certain that Zach is the second man.
Asked why he never told this to the police, Joe says he wants to deal with one thing at a time.
Things are starting to smell a little fishy.
A skinny guy walks out and takes the stand. He’s known Tommy and Joe for years, because they all grew up in the neighborhood. His little sister went to school with Tommy, and he figures he’s known hi for around 10 years.
John admits that he’s bought and sold drugs — and even that he and Tommy have sold each other drugs in the past.
He clearly does know that Tommy is the informant that set up the buy that got him busted and landed John in prison. He’s still on parole.
You must not be too happy, he was asked. “Sure I’m happy, I’m out of prison now.”
But at the time? No, he wasn’t happy.
“Were you mad at Tommy?”
“Not so much mad as hurt.”
His friend betrayed him. No, he wasn’t happy about that.
OK, well what about the night in question? Here’s John’s story:
He was out with his girlfriend at a party, and he called up Joe to see if he could stop by and hang out for a bit. Sure, Joe said. Come on by.
So John drives over… and leaves his girlfriend in the car.
This is apparently the first time both the defense and prosecution are hearing that the girlfriend was “within a million miles” of the house on that night.
But John insists he left her in the car because she’d had a bit much to drink, and she was feeling sick and throwing up — and because his friends didn’t really like her very much. They’ve since broken up, by the way.
So he leaves her in the car and goes right into the house. He and Joe have known each other for years, and he’s comfortable in the house. So comfortable, in fact, that he goes in sometimes even if nobody’s home — which is what he did in this case.
John says the door was open, so he went in. He walked around and didn’t see Joe anywhere, so he was getting ready to go back outside. But as he walked out the front door he saw John coming down the street from his little brother’s house.
Apparently Joe’s little brother (the one that sold him marijuana) lives in the same house as Joe’s grandmother. That’s where Joe was coming from.
So he comes back, they go in the house, and hang out for a while.
Joe’s phone rings and it’s Deanna, who John says was Joe’s girlfriend. John thought she said she had groceries and needed help taking them out of the car, so he goes outside to help. When he sees that he was mistaken, he stays outside for a few moments and takes a few drags off Deanna’s cigarette while Joe takes their child up to the bedroom.
John goes back into the house a few minutes later, hears something upstairs and runs up. He tries the door, but it’s locked. A moment later the door opens and someone comes out and points a gun at him.
Honestly, at this point I’m starting to forget some of the details — so I can’t remember if Joe claimed he was looking at a gun held by Tommy or by the formerly-unnamed-assailant that Joe is now calling Zach.
What I do know is that John claims the following things happened. He was hit in the face with the side of a gun. His nose was broken. Someone tried to put handcuffs on him, but only managed to get one wrist into the cuffs. He was led to the bathroom and left in there for a few minutes with the door unlocked, but he didn’t try to run.
Deanna says she was out at a picnic, dropped off a few family members, and then called John to come get their child.
She stood outside sharing her cigarette with John, because she doesn’t smoke in the house. When John went back into the house she called her mom or her mom called her… I forget, but either way she had her phone in the hand when she walked in the house.
But she heard some shouting. At first she thought maybe the TV was on, but she told her mom she would have to call her back and walked into the house only to see her husband and an assailant fighting on the couch. Her husband had the guy in a headlock… they struggled for a while.
Joe shouted to call 911 and she started to — but then someone was pointing a gun at her and telling her to put down the phone, which she did.
She plead with the attacker to let her just make sure their child is OK, and at first he resisted, but at some point (again, I’m forgetting some details), she says Joe ran out the front door.
Deanna apparently forced her way into the kid’s room, scooped up her child, went out the window onto the rooftop, and walked over to the neighbor’s roof (I don’t think this is as crazy or death-defying as it sounds — the house was connected to the neighbor’s, as many Philadelphia homes are, and climbing one roof to the next often about as difficult as putting one foot in front of the other), and saw the two people with masks and guns run out the back door and away.
From the roof she called for help (her phone was still inside), and when no help came, she climbed down onto the porch.
This all happened, by the way, while she was holding a two-year old child, and while she was 8-months pregnant with a second child.
Here’s the funny thing though – When police questioned Deanna about the incident two years ago — on the very same night it happened, she said that the person she saw struggling with her husband on the couch was Tommy, and that he had hit her husband with a bat 3 or 4 times.
This week on the stand, she said that the person on the couch was the unnamed suspect (who Joe calls Zach), while Tommy was at the top of the stairs trying to put a handcuff on John.
This week’s testimony is consistent with what her husband testified… but doesn’t match with what she said on the night of the incident when she was talking to police after Joe had been taken to the hospital, and before she could go visit him.
When the prosecutor heard Deanna’s testimony, he effectively cross-examined her before the defense attorney had the chance to point out the inconsistency.
Incidentally, I forget which of the witnesses said this, but I feel like at least two of these three witnesses said the ambulance arrived before the police.
We hear testimony from two members of the police department: One of the first called to the scene that night (he said they arrived before the ambulance), and the detective assigned to the case for further investigation.
They came to the scene, saw blood throughout the house, and got the vital details from Joe, John, and Deanna that night — including the fact that all three had identified Tommy. No weapons were found, and while one officer tried to take prints on one of the handcuffs, no fingerprints were successfully obtained.
One other witness was interviewed. A neighbor across the street was out watering his plants (at around 11:30 at night for some reason), and he says he saw two guys running in and out of the house.
Then he saw Deanna walk around the corner with the baby and two or three other people, go into the house, and shout “where the F is he?!”
This other witness wasn’t called by either the defense of the prosecution.
The defense attorney had one more important question for the police officers: had anyone they’d interviewed told them the suspects were wearing gloves?
No, they hadn’t been told that.
Why was this important? Because Tommy has large tattoos on both hands — something that’s pretty distinctive, and which you’d think someone would point out if they were trying to explain how they recognized someone. Instead, Joe, John, and Deanna had all said they’d recognized him by his eyes or his voice… not his hands.
Watching the police officers testify is also interesting. On the one hand, how do we expect anybody to remember in great detail something that happened 2 years ago? On the other hand, it’s probably a lot easier for the people directly involved in a home invasion to remember than for police officers that are just spending another day on the job.
So they tend to review their notes before coming into court and sometimes refer to them during testimony — which makes it clear that they may remember a few details, but for the most part they’re not remembering what happened. They’re trusting that if there was anything important they would have written it down at the time.
Thomas T Junior
The defense called a single witness: Tommy’s father.
His testimony was brief, and covered two points:
1. Tommy came home toward the end of the Flyers hockey game that evening… which was probably at about the time that this crime was alleged to have happened. So he was in the house when he was supposed to be robbing another house.
2. The defense attorney held up Tommy’s hands, which are covered in tattoos and asked Tommy’s father how long he’d had them. At least 5 or 6 years — which means he had the tattoos on the night in question.
The prosecutor also tried to ask Thomas T Senior whether he’d been approached in the hallway of the courtroom the previous day by a bald guy asking his name — but Tommy’s father said no.
Apparently the point of that last question was to suggest that he was hiding something… because the bald guy turns out to be a police detective assigned to the district attorney’s office.
He had been trying to interview the alibi witness — and had been asked to do it recently. The previous week he’d sent a letter, but unable to get in touch with Tommy’s father, he had come to the court building to look for him.
This all seemed like an odd line of inquiry… and left the jurors wondering why the witness hadn’t been interviewed some other time in the two years between the incident and the start of the trial.
People changed their stories. The guy who was fingered also happened to be the guy who had helped send John to jail. The neighbor tells a completely different story than the three people who were supposed to be in the house. It’s not particularly clear how we went from having no burglars in the house to having 2.
And why didn’t anyone point out the guy’s hands? It seems like that should be the first thing you’d point out.
Meanwhile, the prosecutor tried to reiterate the obvious: It’s clear something happened in that house that night.
And that’s true. Joe probably didn’t bash in his own skull with a baseball bat, and John probably didn’t break his own nose.
But we had to decide if it was likely beyond a reasonable doubt that these three people were telling the truth when they said Tommy and a second person came into the house, tried to rob them, beat up Joe and John, and ran out through the back door — leaving no evidence but eyewitness testimony.
Wednesday – Verdict
Going back to court Wednesday morning, I figured it could honestly go either way. The witness testimony seemed pretty unreliable, but there were three witnesses saying one thing, and another witness saying, “no, he was home with me.”
So when the foreman asked for a sample ballot to start things off, I wasn’t shocked to see that there were 9 pieces of paper marked not guilty and 3 guilty. Actually, I was a little surprised that there weren’t more that said guilty — but we weren’t there to prove the defendant did it. We were there to decide whether the police and prosecutor had presented enough evidence that he did.
And inconsistent eyewitness testimony — some of it implausible, and some of it from someone with a clear grudge against the defendant… yeah, that’s tough to swallow.
As we started to discuss the case, it became clear that at least one juror was actually just a little confused by the question. I had suggested that we start off just thinking about a “conspiracy” charge. Conspiracy to commit certain crimes is a crime itself in Pennsylvania, and it basically involves agreeing with at least one other person to commit a crime such as assault or robbery.
In this case, I reasoned, if we all agreed that Tommy was at least in the house, then he must be part of the conspiracy — and then we could figure out if he was the guy with a baseball bat, or just one of the guys with a gun (which wasn’t ever fired).
Conversely, if he wasn’t even in the house, then he couldn’t be guilty of any of the crimes, and so jurors could just write down “not guilty,” which is what 9 people did. A 10th person got a little mixed up about “conspiracy,” and was thinking about when Tommy had gone undercover with a police officer to bust John… but once we discussed it, she changed her mind — as did another juror.
The 12th juror had a hard time figuring out when there would have been time for Joe, John, and Deanna to all agree that whatever it was that happened in the house… they should blame it on Tommy.
That was actually a pretty good question — if you believed the timeline of events that had been presented to us. Joe and John are hanging out. Deana comes home. Suddenly there are burglars in the house and all hell breaks loose… moments after the incident ends police and/or an ambulance shows up (the cops said they arrived first, but most of the witnesses said the ambulance came first.
That wouldn’t give the witnesses a lot of time to gather together and say “OK, someone just tried to rob us. We don’t know who those guys were, but since we’ve got a grudge against Tommy, let’s say it was him.”
But there were so many inconsistencies in the stories that it’s not clear that any of those things actually happened. Clearly something happened in the house that night that led to John’s broken nose and left Joe in need of surgery and with a horrible scar on the side of his head.
Given how many problems there were with the witness testimony though, it’s possible that someone else was responsible for the crimes… it’s possible there was no robbery at all. It’s possible Joe and John might have been fighting among themselves. Lots of things are possible — and lots of those things make as much sense as the story the prosecutor tried to shape out of the testimony of the three witnesses.
We took a second vote and we all generally agreed that there wasn’t strong enough evidence that Tommy was even at the scene to find him guilty of the laundry list of crimes of which he was accused.
The whole process took maybe 10-15 minutes, but we kept talking for a while about the things that had bugged us during the trial. After listening to arguments and testimony on Monday and Tuesday and being told not to talk to anyone about it, we were all relieved to finally have someone to discuss the case with.
We also wanted lunch. Before the judge had instructed us on the law as it should be applied to this case, a court officer had ordered pizza for our lunch. But we finished deliberations by 11:30, and the pizza wasn’t supposed to arrive until 12:30.
The officer was kind enough to try to get it delivered sooner, and after we were sent back to the courtroom to deliver the verdict, the judge thanked us for our service and told us we were dismissed from duty… but that we had to stick around to eat the pizza, because court staff couldn’t eat it for us.
A few folks left early anyway to get back to work, but since I’d insisted on getting a few slices of tomato pie, I figured the least I could do is stick around and eat them.
When the foreperson started to read the verdict, Tommy stood up with his lawyer and stood stone-faced, showing no emotion. He hadn’t really let on what he was thinking at all during the course of the trial. But as he heard the “not guilty” after “not guilty, he started to cry in relief.
We were never told how much prison time he was facing, but based on the number and severity of the charges against him, I’m guessing he could have spent a very, very long time locked away if the verdict had come back differently.
He knew the case against him was weak. That’s why he chose to go to trial and chose a jury trial. His lawyer knew the case was weak, which is probably why he advised it. And afterward, we learned that the prosecutor also knew the case was weak.
The foreperson had served on a murder trial 18 years earlier, and knew that if we asked, the lawyers might come back and talk to us, answering questions we might have.
“People remember things differently,” the prosecutor said, “so it’s rare that you get a trial where there’s not some inconsistency in witness testimony.”
Then his tone changed and it became clear that he had known all along he was facing an uphill battle as he said “in this case I had to deal with a pile of conflicting evidence.”
One juror asked if there was a number we could call to get more information about the case to find out what happens next… and he seemed a little surprised to hear that nothing happens next. Now that we had found the defendant not guilty, everything stops.
We might never actually know what happened in that house that night. It’s possible that Tommy did have something to do with it, but there wasn’t enough evidence to prove that beyond a reasonable doubt. In fact, there wasn’t any evidence, aside from testimony from witnesses who didn’t agree with one another, and in some cases didn’t agree with themselves.
I think most of us left feeling pretty good about the decision we’d reached. The pizza wasn’t bad either.