by David Simon
For the detectives, the decision to plea or dismiss a case is the flashpoint in their ongoing love-hate relationship with the state’s attorney’s office. True, thinks a detective, these people are on our side. True, they’re working to put bad guys in prison at half the salary they might get at an outside firm. True, they’re looking for the same justice we are. But brotherly feelings are out the window when a young assistant state’s attorney, two years out of the University of Baltimore School of Law, gives up on a drug murder that took three weeks to develop. When that happens, the chip goes right back on the shoulder: I busted my ass to get reluctant witnesses into the grand jury, and what for? Just so this goof with pinstripes and a power tie could dump it on the stet docket? Hell, he didn’t even have balls enough to pick up a phone and call me, much less ask how the damn file might be salvaged.
Some of the cases are weak and should be dumped, no doubt about that. Some of them arrived at the courthouse as viable prosecutions, only to self-destruct once the witnesses started backing up. Any homicide detective knows that most basic truth: Shit happens. But he also believes that too many borderline cases, and even a few that are healthy, manage to slip through the cracks, particularly with less experienced attorneys.
A good detective will excuse some of it as understandable and inevitable. As is true elsewhere, the Baltimore state’s attorney’s office is chronically understaffed and underfunded; its trial division is manned by a core of competent veterans and a slew of recent arrivals-younger lawyers who have worked their way up to felony violence after a few years in the district courts. Some will be good trial lawyers, some could go either way, and a few are genuinely dangerous in a courtroom. A detective hopes for a competent prosecutor, but he understands that the system runs by triage. The homicides are parceled out with an eye toward keeping the major cases-those involving true victims or those in which the defendant is suspected or charged with multiple crimes-in the hands of veteran attorneys. The hope is that in the most critical cases, the prosecutor will not be outclassed or intimidated by the coterie of experienced defense attorneys who by private retainer or court appointment always gravitate to city homicide cases.
Every detective also understands the need to take pleas on at least two-thirds or more of the viable murder prosecutions. Although most everyone outside the legal system regards “plea bargain” as a dirty word, those who make their living at the courthouse recognize it as a structural necessity. Without plea agreements, the system would lurch to a halt, with cases waiting for courtrooms the way commuter flights wait for runways in Atlanta. Even with the current ratio of pleas to trials, the delay between a murder indictment and the court trial averages between six and nine months.
But in a detective’s mind, there is a vast difference between a good plea and a bad one. Second-degree and thirty is always a respectable plea, except for truly evil acts such as, say, child abuse cases or robbery murders. If the case is borderline, second-degree and twenty isn’t too shabby, although it’s not exactly the iron fist of justice when you consider that the parole board puts most of them back on the street after about seven to ten. In a true manslaughter case-a domestic murder that was the act of fear or impulse, though it could in no way be called an accident-anything from two to ten is reasonable. But what’s hardest for a detective to swallow is a prosecutor allowing a particularly bad murder to go as second-degree, or calling a murder a manslaughter, or a manslaughter an accidental. Even in those instances, most detectives won’t speak their piece unless they’re asked, and the prosecutors don’t usually ask. In the homicide unit, the time-worn philosophy is that it’s on the prosecutor; you did your job, fuck him if he won’t do his. Occasionally, however, a detective will cross the emotional boundary.
Worden, for instance, has been known to say something to a young prosecutor who’s giving up on a file too quickly, or seems afraid to take a decent case into court. Landsman will sometimes do the same, and Edgerton, if you give him a chance, will tell a prosecutor how to try the case and then write out the closing argument. A lot of men in homicide carry around a case or two that still burns them. Garvey, for one, still isn’t saying much to the ASA who turned the Myeisha Jenkins murder into a second-degree plea-Myeisha, who was all of nine when her mother let her boyfriend beat the child to death and dump her on the shoulder of the Baltimore-Washington Parkway. Garvey told the lawyer he was a piece of shit for taking that plea, told it to him in such a way that the man didn’t even try to argue.
If he cares enough about a case, a detective can lobby or even argue for a particular strategy. But in the end, decisions about the legal approach to a case are not his to make. From crime scene to conviction, the courthouse is the only part of the process in which the detective becomes a passive participant, a player wholly dependent on the decisions of others. A detective is there to testify and otherwise serve the lawyers in any way he can. The lawyers, meanwhile, regard that service with varying amounts of appreciation. Some prosecutors consult the investigators on evidence and presentation, asking the opinions of veteran detectives who have been through the process more often than the attorneys. Others view the detectives as little more than props and gofers, responsible for showing up on time with the right evidence and the right witnesses.
Homicide detectives are further distanced from their cases because, as witnesses, they are sequestered and therefore prohibited from attending court and listening to other witnesses. Detectives in Baltimore spend 90 percent of their court time sitting on hard wooden benches in corridors, or running bags of evidence between the courtroom and the prosecutor’s office, or chasing down a witness who’s supposed to testify in the afternoon session but hasn’t shown up, or maybe bullshitting with the secretaries upstairs in the Violent Crimes Unit. Court time for a detective is a strange limbo, a period of nonexistence that is only briefly interrupted when he is called to testify.
The stand is the last point in the process in which a detective’s expertise counts for something. In most cases, the testimony of civilian witnesses-primed and prepared by the prosecutor before trial-will produce the most critical evidence. But in every case, the testimony of the detective, concerning the crime scene, the discovery of witnesses, the statements made by the defendant, lays the groundwork for the prosecution’s case. Among prosecutors, there is a theory that says a detective’s performance on the stand can rarely win a case, but it can be enough to wreck a prosecution.
Before taking the oath, a detective who knows his business makes a point of reading through the case file. After all, it’s been six months and a lot of bodies between the arrest and trial. In 1987, a city detective-no longer in the homicide unit-responded to a prosecutor’s question with an elaborate description of the crime scene and subsequent investigation. After a minute or two, he saw that the prosecutor was making strange faces. Even the defendant looked a little curious.
“Um, wait one second,” said the detective, coming to grips with the disaster. “Your honor, I think I’m remembering the wrong murder…”
That spells mistrial with a capital M.
Many detectives prefer to take the file onto the stand, but with some judges that can be dangerous. A typical case file contains notes and reports on potential suspects and blind alleys that were eventually discarded, and a few judges will allow a defense attorney, on cross-examination, to take hold of the file and go fishing. Given an alternate suspect from a police file and a tolerant judge, a defense attorney can run for miles in front of a jury.
One detective, Mark Tomlin, makes a point of copying his trial notes onto the back of the defendant’s computerized arrest sheet. Once, when Tomlin was testifying, a defense attorney asked to see his notes and began to suggest that they be admitted into evidence. He then turned the sheet over, looked at his client’s priors, and returned it without another word.
Veteran detectives also go into court knowing the strengths and weaknesses of their cases; they can anticipate a defense attorney’s line of quest
ioning and answer accordingly. This doesn’t mean responding with answers that are grandly deceptive, but tailoring answers so that they do the least damage. If, for example, the defense counsel knows that your witness picked his client from a lineup but failed to do so in a photo array the previous day, he’s almost certainly going to ask about that. Anticipating, a good detective will, in the course of his answer, manage to work in the fact that the array used a picture of the suspect that was six years old, that the suspect’s hair was different, that he had no mustache and whatever else can be said before the lawyer stops him from talking. Defense attorneys have now endured untold generations of slick, manipulative police witnesses; one consequence is the just-answer-yes-or-no style of cross-examination, which requires a detective to wait for the prosecutor’s redirect to fully shape his answers.
On the other hand, if a detective is on the stand and not sure just where a defense attorney is going, his answers will become cautious and a little less specific, though not inaccurate in any detectable sense. A professional witness doesn’t needlessly back himself into corners with blanket declarations and assurances, because a good attorney will then manage to produce an exception.
“Detective, you say that after Mr. Robinson was arrested for this crime, the robberies in the area of North and Longwood ceased.”
“Yes, sir.”
“Detective, may I call your attention to a police report dated…”
Experienced detectives take one other rule to the stand with them: They don’t lie. The good ones don’t, anyway, not about anything that could ever be directly contradicted in open court. Perjury can destroy a career, steal a pension, and maybe, if the lie is big enough and stupid enough, lead to some jail time. For a detective to falsify evidentiary material, to wrongly attribute statements to suspects and witnesses, carries a risk far greater than the reward. How much does it matter-really matter-to the detective if any one suspect charged with any one murder goes to prison? He does fourteen of these guys a year, a couple hundred in a career. For what reason is he going to start believing that the world ends when he doesn’t win a case? If it’s a police shooting, or if it’s someone the cop knows, then some corners might be cut, but not for something that happened in the 1900 block of Etting Street on a Saturday night last summer.
The one notable exception to the marked honesty of a good police witness, the only point in the legal process where law officers can be expected to lie routinely or, at the very least, exaggerate, is probable cause.
For narcotics or vice detectives in particular it’s become a ridiculous game, this business of establishing the correct legal prerequisites for a search or arrest. Not surprisingly, it isn’t enough to say that the suspect was a squirrel who’d been out on that corner about ten minutes too long. No, the law of the land requires that the arresting officer had the opportunity to observe the defendant operating in a suspicious manner on a corner known for drug trafficking and that upon closer inspection, the officer noticed a glassine envelope sticking out of a sweatshirt pocket as well as a bulge in the front waistband indicative of a weapon.
Yeah. Right.
Probable cause on a street search is and always will be a cosmic joke, a systemic deceit. In some parts of Baltimore, PC means looking at a passing radio car for two seconds longer than an innocent man would. The courts can’t acknowledge it, but in the real world you watch a guy until you’re sure he’s dirty, then you jack him up, find the dope or the gun and then create a legal justification for the arrest.
In homicide, where the name of the game is search-and-seizure, with affidavits written in advance for specific addresses, the PC generally has to be straight up. After all, you need the judge’s signature on the warrant just to get you inside. A detective with a talent for the written word may be able to get some weak or exaggerated PC past a duty judge, but at least he’s required to put something in the affidavit.
For the homicide detective, the only real moment of equivocation on the stand occurs not over the issue of probable cause, but when a defense attorney asks whether his defendant’s statements were coerced, or whether his client asked for a lawyer before making those statements. In his heart of hearts, a good detective knows that every statement is, to some degree, the result of coercion if not outright fraud. But, holding to a strict legal definition, he can answer in the negative and call his testimony something other than perjury. After all, the defendant got his rights, he signed his Form 69. He had his chance.
“But did he want a lawyer?”
Well, a detective could ask, how do you define want? Probably half of all suspects get into an interrogation room and say they want a lawyer, or they might need a lawyer, or maybe they should talk to a lawyer. If they stick to it, if they really want that lawyer and they don’t want to talk, then the interrogation is over. But any detective worth his salt tries-for a time, at least-to convince them otherwise, content in the knowledge that there isn’t a Supreme Court justice standing outside the interrogation room door.
“Did my client ask for a lawyer?”
“No, he did not.”
On the stand, the last rule for a homicide detective is that nothing is personal-nothing between the detective and the defendant, nothing between the detective and the lawyers. On the stand, demeanor counts. A cop who loses his cool long enough to display contempt or malice for the defendant or his counsel provides the jury with the image of a malevolent system, of a crusade rather than a prosecution. The defense attorney calls you a liar, you impassively deny that. He declares your investigation to be incompetent, you deny that, too. His client eyefucks you from the trial table, you ignore it.
For a veteran detective, there is nothing hard in any of that. After all, if it’s the ordinary homicide case, the indifference is probably genuine. But even when the case matters, a veteran doesn’t do anything to make the defendant believe that he cares, or that the outcome of this case has any relevance in any world that rates. In its way, it’s an attitude that offers the defendant even less than anger or contempt. In court, a detective’s message to the defendant is clear and unmistakable: Win or lose, you’re still a piece of shit living on the margins. If the jury comes back guilty, you’re down for some years; if the jury doesn’t do the job, you still don’t count. Six months from now, you’ll be back in city jail on another charge, says the attitude. Either that or someone on my shift will be out there one night chalking your ass off.
Strangely, the defendants rarely take it personally. They come into the courtroom from the heat of the basement lockup; shackled and cuffed, they look around and catch the eye of the detective. More often than not, they nod or acknowledge the loyal opposition in some small way. In the course of a long trial, a few actually reach out and shake the detective’s hand or mutter a senseless thank-you for no reason that can be discerned, as if the detective was doing them some kind of favor by showing up.
But on rare occasion, when a defendant is talking shit-performing in the courtroom, signifying, passing wolf tickets to the judge and prosecutor-a detective will step through the psychological barrier. Only then will the defendant be acknowledged in any real way; only then does a detective let anyone suspect that he may actually care about the legal outcome.
Earlier in the year, Dave Brown happened to be in a courtroom for the jury’s verdict on two of his defendants-west-siders, age twenty-two and fourteen, charged with murdering an elderly minister in a street robbery near University Hospital the previous spring. Brown remained silent as the jury forewoman read out first-degree verdicts, but the older defendant suddenly lost his chill.
“You happy now, bitch?” he shouted, turning to glare at the detective.
The gallery fell into silence.
“Yes,” said Brown quietly. “I’m pleased.”
Inside a courtroom, it’s as much as a detective allows himself.
WEDNESDAY, OCTOBER 19
At his cluttered desk on the fourth floor of Courthouse West, Lawrence C. Doan rearranges a
stack of legal pads and runs one finger along the bottom of his dark bangs and then back over the top, carefully reassuring himself that all is in place. No cowlicks today. No antigravitational shift in the tie’s Windsor. No lint on the lapels. No problem whatsoever, save for the fact that today he’s going to try to prosecute a murder in the city of Baltimore, which is a little like trying to drive a Winnebago through the eye of a needle.
And now, when Doan wishes only to be left alone to review notes and prepare his opening, a homicide detective bounds through the door to yank his prosecutor’s chain over matters large and small-a deliberate act of sadism, born of the same impulse that causes small children to pull the wings off flies.
“Are we ready?” asks Garvey.
“Are we ready,” says Doan. “You come in here ten minutes before court and ask me that?”
“Just don’t fuck up my case, Larry.”
“How can I?” asks Doan. “It came to me prefucked.”
Garvey ignores him. “The photos come in with me, right?” he asks, wondering about evidentiary order.
“No,” says Doan, trying to think bigger thoughts, “I’ll get those in with Wilson. Where’s Wilson? Did you call the crime lab?”
“And the bullets?” asks Garvey, ignoring him. “Do you need the bullets today?”
“Which bullets? Where’s Wilson, does he-”
“The bullets from the trunk of the car.”
“Um, no. Not today. You can take those back to evidence control,” says Doan, preoccupied. “Does Wilson know he’s on this afternoon?”
“I think so.”
“You think so?” says Doan. “You think so? What about Kopera?”
“What about him?”
Doan begins to change colors.
“You’re not going to get to Kopera this afternoon, right?” asks Garvey.
