Innocent Until…?

One thing I’ve learned from my experiences serving on a jury: each case is different.

It’s not just the crime itself, and the individuals involved, but the judges (each of whom has slightly different rules for the conduct of trials) and the attorneys (who have ranged from reasonably competent to truly outstanding) and the final feeling of satisfaction (or not) from having served.

The Criminal Justice Center in PhiladelphiaThe Criminal Justice Center in Philadelphia

This was one of the less satisfying ones.

I reported for jury duty at the Criminal Justice Center on January 8, 2013, and within minutes was swept up in a 60-member panel. It didn’t take too long to do the preliminary questioning, and by lunchtime I had been selected as juror number three and given my instructions for reporting the next day by 9am.

A lot has changed since the last time I was chosen to serve on a jury, four and a half years ago. Cell phones no longer have to be checked in the lobby, and jurors can now take notes.

Over the following few days while sitting in the jury room waiting for the trial to resume, I had to keep reminding myself not to slip into Mr. Know-It-All mode, so I kept out of most discussions.

Steve WinwoodSteve Winwood

Even when it was painful to do so.

For example, at one point some of the guys were talking about Steve Winwood and how he had gone from Blind Faith into Cream! No, no, no! Steve Winwood was never in Cream which consisted of Eric Clapton, Jack Bruce, and Ginger Baker, and in any case Cream predated Blind Faith. Everyone knows that! Well, obviously not everyone. Eventually they remembered that it was Traffic, not Cream, but they seemed to think Traffic came after Blind Faith. I finally piped up, “Actually Traffic came both before and after Blind Faith.”

But otherwise I stayed out of the controversial discussions.

The Case

It was Judge Sandy Byrd’s courtroom, and right from the get-go he proved to be a no-nonsense kind of guy. The prosecutor was Gwenn Cujdik (pronounced something like Chudduck) who was good but not well organized, and the defense attorney was Daniel-Paul Alva, who was probably the best lawyer I’ve encountered in a Philadelphia courtroom.

The case as presented by Ms. Cujdik was as follows: Around 3:30 am on Oct 27, 2008, Antoine Jones, 27, who lived in a second floor apartment on the 1400 block of Unity Street with a couple friends, answered the front, street-level door; he was shot once in the upper arm; the bullet shattered the bone and traveled into his chest where it lodged in his heart; he died in a hospital a few hours later; the defendant, Jabreal (20, he was 16 at the time of the shooting), was accused of perpetrating the shooting in order to intimidate and silence potential witnesses before his brother Ali’s preliminary hearing, which was scheduled to start that morning; Antoine was not a witness in that hearing but was killed in a case of mistaken identity.

Mr. Alva in his opening statement indicated that he would not be putting on any witnesses and emphasized that we should not hold it against his client for not testifying. He mentioned that we should not put much stock in the alleged motive because that was something that had just materialized in the last few months. Ms. Cujdik objected at that point, and the judge overruled her; that was the one and only time during the entire trial that a ruling went against the prosecution.

Although there were four days of testimony, there were lots of delays where one of the attorneys asked for a sidebar and the jury was removed from the courtroom; without the delays, the trial would probably have lasted less than two days.

The Testimony

Here’s a summary of the witnesses:

Regina, 25, was first; she testified that at the time of the shooting, she lived in the apartment on the second floor of the building (it was a three story row house, with one apartment on each floor) with her boyfriend Darnell, their two children (ages 3 years and 10 days), and their friend Antoine. She and Darnell shared the bedroom in the front and Antoine used what should have been the living room as his bedroom.

Regina remembered being woken in the middle of the night by an incessantly ringing doorbell; she heard shots and woke up her boyfriend Darnell; she looked out the window and saw the shooter, a kid that she recognized from the neighborhood, and she identified the defendant. She said she saw him pointing and firing a gun at the front door of the apartment building; then she saw him turn and run down the street. (Or was it up the street? Despite the use of maps and the attempts of both attorneys to establish the relative directions, I remained a bit confused about which way people were running until near the end of the trial.)

She called 911 to report the shooting; then she heard someone at her apartment door; she thought it was the shooter but then realized it was Antoine. Her boyfriend Darnell let Antoine in, and he collapsed on the kitchen floor.

As a recording of her 911 call was played, she became understandably upset as she relived the events of that night. The call lasted at least ten minutes; I don’t know how the other jurors felt, but it was disturbing to listen to it, and the main thing that made it bearable for me was the poor quality of the recording which made it difficult to understand at times.

When the police showed up, they moved Antoine down to the street and eventually into an ambulance.

She also testified that the previous September she was sitting out on her front stoop one evening with her boyfriend and children when she heard shots from down the street; shortly after that she saw the defendant running past, at which point she and her family went inside.

She said that she and Darnell began receiving threatening phone calls after Antoine was killed. Although she initially told the police that she had not seen the shooter, after a few days she identified the defendant Jabreal from a photo. She and her boyfriend then moved far, far away, about six hours from Philadelphia. They still live together.

Regina was probably the prosecution’s best witness. She was sympathetic and believable. But she had also changed her story several times, as Mr. Alva emphasized in his cross-examination. During the 911 call she clearly said that she had not seen the shooter.

If Regina was the best witness, her boyfriend Darnell was the worst. We never were informed of his age; I’d guess somewhere between 40 and death. Anyway he testified to most of the same events, although his story was different in just about every detail. For example, Regina, whom he called his “baby mama”, had said that he had been drinking while they were watching an Eagles game, and then he had gone out to visit friends. But Darnell insisted that he had not had a drop to drink all evening.

He claimed that he awoke when he heard the doorbell and shots, and he ran to the window, threw it open, and saw the defendant.

Ms. Cujdik asked Darnell to use a laser pointer to indicate something on a map that was being projected on a screen on the other side of the courtroom. While he was walking up to the screen so he could see it clearly, his trousers, which were dangling somewhere around the middle of his buttocks, nearly fell down.

Mr. Alva tore him apart on cross. Among many other things, Darnell admitted needing glasses but he refused to wear them. Darnell became very antagonistic during cross-examination and refused to answer questions as simple as which side of the bed he slept on. For me this was the comic highlight of the trial, and I had a hard time refraining from laughing a couple times.

Next we heard from Officer Norman DeFields, a firearms expert, who filled in some of the details about the bullets and the f.c.c’s or “fired cartridge cases”, and he identified the weapon as a semi-automatic.

The gun used in the shooting was never recovered, according to Officer DeFields.

John Borschell, 39, testified next. He was in a wheelchair, having been paralyzed from the waist down by a gunshot wound he received while trying to flee from an attempted robbery in September, 2008.

On that night he had gone to shop for some items for his mother when a group of three guys stopped him and asked for a cigarette. He didn’t comply fast enough, so one of them said, “Shoot that pussy!” He turned and hopped onto his scooter to try to get away, but he was shot in the back, the bullet hitting him with such force that he was thrown off his scooter. Fearing that they would come to finish him off, he played dead, but he was able to see them run away.

He identified the defendant’s brother Ali as the one who shouted “Shoot that pussy”, but he insisted that the defendant was not present. All in all, he was a very sympathetic witness, and he seemed to harbor absolutely no anger over the fact that he was now confined to a wheelchair for the rest of his life.

I think it was during Mr. Borschell’s testimony that Mr. Alva asked him a question about his statement to the police which included the abbreviation “SB”, which Mr. Alva translated as “southbound”. Ms. Cujdik objected to that characterization of “SB”, to which Mr. Alva retorted that “Maybe it means Stupid Ballistics!”

Several police officers and detectives testified about responding to the 911 call. A pathologist testified about the victim’s wounds and expressed the opinion that the victim’s death was a homicide. He also testified about a wound that he forgot to include in his report, which led to another hour and a half delay. When the trial resumed, the judge read a lengthy statement to let us know that Ms. Cujdik had been unaware of this forgotten wound until just before the pathologist testified. The judge went on to tell us how we should put this information in context, etc.

Tameka Jones, the aunt of the victim, took the stand in order to put a human face on Antoine. The jury was shown a photo of her and her nephew taken the night before he was killed.

Several more police officers testified. According to the initial reports of the incident, they thought they were looking for four black men as the perpetrators, although no one seemed to remember why. One of them found a palm print on a car parked in front of the apartment building. Another one, a member of the CSU, tried to match the palm print to a person, but it remains unidentified.

The closing arguments were about what you would expect. Mr. Alva spoke for over an hour without notes, passionately pointing out holes in the prosecution’s case. Ms. Cujdik spoke for a bit less than an hour, with notes, arguing her theory of the case, that Antoine had been killed in a case of mistaken identity, that the defendant was trying to silence Darnell and Regina, whom he mistakenly thought were going to testify against his brother.

The judge gave us his instructions, described the charges, and sent us to deliberate.

We had to decide if the defendant was guilty of 1st degree murder (premeditated) or 3rd degree murder (the intent to harm but not necessarily kill); also, there were three gun possession charges.

The Attorneys

As I indicated earlier, I was impressed with the defense attorney, Daniel-Paul Alva. He was organized, and he spoke well, in complete paragraphs, during his opening statement. I also thought that he treated the witnesses respectfully. In the past I’ve gotten annoyed with defense attorneys who I thought were bullying the witnesses; not this guy.


Daniel-Paul AlvaDaniel-Paul Alva

So I was surprised to find that some of the other jurors didn’t like him; he was too arrogant, they thought. They also didn’t like the fact that when a judge’s ruling went against him (which was all the time) he would roll his eyes or make a face to let the jury know he was upset. They thought he should be more gracious when a ruling went against him.

I pointed out that we should consider everything that both he and the prosecutor did to be role playing. They were both acting a part, and letting the jury know when they were upset was part of their act.

By contrast  the Assistant District Attorney, Gwenn Cujdik, was merely competent. When she was speaking directly to the jury or questioning witnesses, she was good, but there were times when she just didn’t seem to be as knowledgeable about the case as she should have been. She often spent a lot of time paging back and forth in her loose-leaf notebook until she found the exhibit she wanted, and she frequently had a hard time finding a photo or map that she wanted to project on the screen. It occurred to me later that perhaps she had only recently been assigned the case. That would certainly explain a lot.

The Deliberations

I guess I should introduce the other jurors: Mario, Kevin, Reuben, Jerry (aka Julio), Tim,  Scott,  Barb, Christine, Terrence, Allison, Claudia, and the alternates Brian and Nina.

Say goodbye to Brian and Nina.

After the judge had finished his remarks and we had returned to the jury room, Allison thought we’d be able to render a verdict in about fifteen minutes. “I’m ready to vote now! You mean we have to come back tomorrow?” It was already 5:30.

But before we could leave for the day we had to pick a foreman; Allison piped up and pointed to Tim: “You’re a school teacher. You be the foreman.”

I interjected that if he or no one else wanted it, that I’d be willing. He didn’t take me up on my offer–and he lived to regret it.

This was the end of the fourth day of the trial, and we would begin our deliberations the next day.

There’s probably no need to drag this out much longer; you’ve probably already guessed our verdict.

It’s a credit to how well the jury had done, in not discussing the particulars of the case, that I didn’t know how the others felt. But when Allison made her remark about being ready to vote, I got a sinking feeling in my stomach.

Based upon the evidence presented, I had no idea what had really happened, and I felt I would have to vote not guilty on all charges. Now with Allison’s comment, I began to think I might be a minority of one. There was a precedent for this; on my previous jury outing, I had gone into the jury room ready to acquit and being surprised that I was the only one who felt that way. On that occasion we came up with a compromise, acquitting the defendant of the most and least serious charges and finding him guilty on the others. On this case I didn’t see how there could be room for a compromise.

Once we got into the jury room the next morning, my concerns turned out to be unfounded. Pretty much everyone felt as I did; there just wasn’t enough evidence to convict.

Everyone had a different theory. Some thought the defendant actually was guilty, some thought he wasn’t, and some of us just didn’t know. But we were all pretty well agreed that we couldn’t believe anything Darnell had said.

We were also pretty well agreed that we couldn’t understand what Regina saw in him; she could do much better.

We all liked Regina, but we attached different weights to her believability. I thought she had probably testified truthfully (i.e., she believed what she was saying), but her story had changed too many times for me to believe it.

In any case there just was no corroborating evidence to place the defendant at the scene, there was nothing to indicate that he had ever possessed a gun, there was no physical evidence pointing to him.

There was Regina’s eyewitness testimony, and there was the circumstantial evidence of the defendant’s brother’s preliminary hearing with the inference that maybe he thought Darnell would be a witness against the defendant’s brother (although he wasn’t) and that he had mistaken Antoine for Darnell.

We all wondered how this case had ever come to trial. I speculated that there probably was more evidence, but for one reason or another, it wasn’t presented. Maybe the defense had won some pretrial motions to suppress some evidence.

Several jurors, including Allison, thought that Antoine might have been the intended target all along and that he was killed for some reason having nothing to do with the defendant’s brother’s case.

Tim suddenly got cold feet. He turned to me and said he wished he had taken me up on my offer to be foreman. By this point I was actually feeling relieved to be just one of the group.

We kept discussing the case, and there were no serious disagreements, no raised voices; we all felt we needed more evidence.

Kevin mentioned that he had seen the defendant crying during Mr. Alva’s closing argument, and several others had also seen that. I remembered seeing him rub his eyes although I hadn’t noticed the tears.

At one point Scott asked me about my reservations regarding Regina’s testimony. At the time I wasn’t sure I understood his question, so I’m not clear if I gave him a good answer. I thought Regina testified to what she believed to be the truth, but because of her changing stories, I couldn’t fully accept her identification of Jabreal. But, and this is crucial, even if she had been the most reliable witness possible with an unimpeachable reputation and 20/20 eyesight, she was still only one eyewitness; I can’t convict a person of a serious crime simply based upon one witness. I need corroboration. Also, I know that eyewitness testimony is one of the leading causes of wrongful convictions. I need something more than eyewitness identification.

Another reason that I’m leery of eyewitness testimony (and when this came up, I’m afraid I shifted into Mr. Know-It-All mode; sorry, fellow jurors; I’m not an expert on the brain and memory issues, but I have listened to a lot of episodes of The Brain Science Podcast) is that our memories are really not very reliable. When we recall an event, our brains retrieve the memories from the neurons where those memories are stored, then the memories get re-stored in a different set of neurons. So every time we recall or talk about an event, our memories change, perhaps in very slight, subtle ways, perhaps in major ways. We just aren’t very reliable memory machines.

Our lunch arrived shortly after noon. From Chick-Fil-A. Not my choice. My first meal ever from that chain. And probably my last. I had ordered the chicken nuggets, expecting that they’d come with french fries or some other side dish. Nope. Just soggy chicken nuggets and a small bag of potato chips. And hot sauce. The hot sauce was the only really edible part of that meal.

Scott got my attention and said, “I saw your face when you opened your meal, and your reaction was the same as mine to this case. Is that all there is?”

Tim, as foreman, sent a note to the judge requesting the initial statements of Darnell and Regina, and the reports of the first officers on the scene. I suspected the request would be denied, but there was no harm in asking.

So court was reconvened, we went back in, and the judge denied our request; we needed to rely on our memories and our notes. I saw Mr. Alva mugging to a couple of the other jurors; shrugging his shoulders as if to say “I can’t understand why the judge would deny such a reasonable request.” Back in the jury room I reminded them that he was still acting; he wants us to believe that he’s on our side.

In any event it didn’t matter. We had made our decision, and we were ready to vote. No confidential ballots were needed; just a simple voice vote. Not guilty of all charges. Tim sent another note to the judge to let him know we had reached a verdict.

We had deliberated less than three hours.

Something Unexpected

One of the perks of not being foreman is that when the verdict was read, I could actually watch the reactions of the principals and the spectators. There were maybe half a dozen or so people sitting on the defendant’s side, and four or five police officers on the prosecution’s side. Behind them were only a couple people sitting where Antoine’s family would sit; perhaps they were surprised by the swiftness of the verdict and couldn’t make it back to court in time.

I expected to see some reaction from the police officers when they heard the not guilty verdicts, but they were surprisingly stoic. The same with Ms. Cujdik. She just calmly recorded the verdicts as Tim read them off. While the verdicts were not what she wanted to hear, they were probably not unexpected.

The defendant’s family and friends were also surprisingly subdued at the happy news. They reacted with tears and smiles, but no whoops. I guess the whoops would come later.

Most surprising of all, however, was the reaction of Mr. Alva. He and the defendant had risen for the reading of the verdict, of course, and when the first not guilty verdict (for the charge of Murder in the 1st Degree) was announced, he almost seemed to be bracing himself. When the second verdict (for the charge of Murder in the 3rd Degree) was announced, he covered his face with his hands and wept. As I remarked to Kevin back in the jury room, that was unexpected and seemed to be a genuine moment.

The remaining verdicts were read, Mr. Alva and Jabreal hugged each other, the judge thanked us for our service, and we were escorted from the courtroom.


After we had reached our verdict and were waiting for court to resume, I asked the group a question. Darnell had referred to Regina as his “baby mama”. Was that really a common term these days?

Allison: “It is among African-Americans. You’ve never heard it before?”

Me: “Only on tv and in the movies. This is the first I’ve ever heard it in real life. I guess I think it’s something of a derogatory term.”

Allison: “Well, some men might have their baby mama and then have a girlfriend on the side. But I can guarantee  you one thing. Darnell doesn’t have no girlfriend on the side!”

Our part in the case was over, so some of us began Googling the principals in the case; practically every juror had one variety of smart phone or other and we had shown amazing restraint in not Googling anything related to the case before now.

As it turns out, just a few months ago Gwenn Cujdik was one of the ADAs on a very high profile rape/murder case.

Daniel-Paul Alva is a prominent attorney in the Philadelphia area with a very impressive resumé. He has his own firm, Alva & Associates, he’s an adjunct professor at Temple University’s Beasley School of Law, and most impressive of all, he belongs to NORML. I knew I liked him from the start!

As we lined up for the final time, waiting to be escorted out of the jury room to the elevator, I turned to Scott and said, “Hey, Scotty, can you beam us out of here?”

“I have to check with my baby mama!” was his reply.

When we emerged from the elevator on the ground floor and walked over to the administrative office to get our checks ($102 for six days), we passed by Mr. Alva who was standing there with some of Jabreal’s family.

“Thank you!” he said.

I indicated at the start of this longer than intended essay that this was an unsatisfying experience. There’s still this nagging question of why the prosecution went forward with such a weak case. One possibility is that the District Attorney’s office believed that the defendant was in fact one of the four black males that the police were originally searching for, and that by prosecuting him, they could force him to reveal the name of the actual shooter. But once again, that is just idle speculation.

It helped me a great deal to see Mr. Alva crying at the verdict, because that indicated that he believed in the defendant, if not in his complete innocence then at least in his ability for redemption.

I think we reached the correct verdict based upon the evidence that we were given, but the fact remains: the killer (or killers) of Antoine Jones is still out there.

Updated on February 8, 2013 to add additional details in the testimony of Darnell and John Borschell.

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