Rashomon beyond borders

I finished jury duty yesterday, acquitting a guy who was observed by an undercover policeman conducting a drug transaction.  The twelve jurors reached agreement in less than an hour.

I went home the night before convinced after hearing the prosecution’s case that we would convict the guy.  The policeman said he had seen the accused transfer $25 worth of cocaine and PCP to another person in broad daylight on a Washington, DC street corner.

Yesterday, the defense put the accused on the stand, where he said he was an addict trying to buy, not sell, when he realized the transaction was being observed.  He therefore aborted the transaction, asked for and received his money back without receiving the drugs, which were found in a search of the other guy.

None of the jurors was sure this defense account of events was true, and for all I know it is a standard ploy to claim to have been buying when you are accused of “distribution,” which the judge explained requires transfer to another person (not necessarily for payment).  But there was no compelling evidence the story was false.  Had the policeman seen the tiny packets (“zips”) of drugs transferred?  Not really, but he claimed that he saw the second man pick something unidentified out of the accused’s cupped hand.

So here you have two different versions of the same events, with the rules heavily weighted in favor of the defense:  the government was obligated to prove the distribution of illegal drugs “beyond a reasonable doubt.”  None of us on the jury thought that standard had been met.

It struck me as we proceeded through the careful choreography of a DC courtroom how really very difficult it is to administer justice this way.  Jurors randomized, judge impeccable in explaining the law and protecting the integrity of the process but not commenting in any way on the truth or falsity of the allegation, machine to make consultations at the bench inaudible, jurors disciplined about not discussing the case outside the jury room, prosecutor and defense attorney clearly well-educated and experienced.

It is not an exaggeration to say that it is a privilege to have your crimes judged in this fashion, though the drug-addict accused is unlikely to have been grateful.  His court-appointed attorney told me after the trial he did not think the guy would take advantage of the big break the jury had given him.

All this for a $25 offense?  I still don’t know why the government bothered to prosecute this case, but I imagine they were convinced he was a much bigger fish than he appeared in court.

Which raises the much more important question of how and why Troy Davis was convicted in Georgia when there was no physical evidence and most of the witnesses changed their stories after the conviction, several claiming the police had pressured them to testify as they did.  I can’t say Troy Davis was innocent, but was he guilty “beyond a reasonable doubt”?

The world was watching the Troy Davis case.  Were I still a U.S. diplomat, I would find it hard to explain the execution of someone about whom there was even a sliver of reasonable doubt.  The issue for me is not so much the moral one, which should be more important to those who believe government is an inefficient and ineffective mechanism to do just about anything and therefore inherently untrustworthy.  The issue for me is doing something irreversible (and, by the way, frighteningly expensive, as capital cases chew up a lot of resources) when there is no physical evidence.  Eye witnesses are notoriously unreliable.

The United States makes a lot of effort these days to promote “rule of law” abroad–it has been a major part of our efforts in Iraq and Afghanistan.  Ours is such an expensive and difficult system to administer that it gives me pause to ask poorer and less well educated countries to imitate it.  But the execution of Troy Davis gives me even greater pause, even if both Iraq and Afghanistan are devotees of capital punishment.  Can they really be expected to do any better than we do in eliminating the possibility of executing someone who is innocent?  What is the example we are setting?