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(Note: Most of my stories here tend towards the light and fluffy. This one isn’t, so be forewarned that some of this is ugly. Even though this is all a matter of public record, I’m going to limit my use of names to the principals, and then only those I remember; it’s been almost 15 years. These are the events to the best of my recollection, some of which I learned in the trial, and the rest that I found online after it was all over. I’ll try to demarcate the two.)
Late on the night of Nov. 14, 1997, Elhadji Gaye pulled up in his green Lexus sedan in front of an apartment building in East Harlem, NYC. A driver for a livery company, he had received a call for a pickup at that address from his dispatcher. It was late, but Gaye, a recent immigrant from Guyana, was happy to work the long hours, as it allowed him to send more money back home; not only to his wife and children, but to his entire extended family.
He had no sooner parked than two young women quickly entered the back seat from opposite sides, the one on the passenger side holding a Calico Liberty 3, an imposing-looking, 9mm semi-automatic pistol with a 100-round helical magazine.
She put the gun to the back of his head, and said, “If you move, I’ll kill you.”
He moved. And she killed him.
In late October of 2002, I received a jury summons from the State of New York. This was hardly an unusual event, although annoying. When I moved into Manhattan in the spring of 2000, I had immediately registered to vote, because of the upcoming election. The first jury summons arrived shortly thereafter, so by the time late 2002 rolled around, I was getting my fifth one. I had shown up for three out of the previous four; on one of them I didn’t notice it in the pile of mail and missed the day. In each of those three previous visits, I got out based on having work commitments that I couldn’t reschedule. Just tell the clerk that you have unavoidable work conflicts, and they mark it down and you can leave. It was easy.
That was legitimate, by the way. This was during the period when I was the Technical Manager for a mostly offshore team in India, commuting far out to a client site in New Jersey every day, to be the “face” of the project, as we ran a seemingly endless series of 13-week projects. Since the summons would come six months apart, they would invariably arrive just when I was trying to get a new project cycle off the ground.
But this summons was different, containing a new and interesting feature. Right in the center … in red ink … were two words that hadn’t appeared on any of the others.
Bright and early on the following Monday morning, I presented myself to the clerk at the jury selection processing center in the courthouse, and he confirmed for me that this time I wouldn’t be leaving.
This is not the courthouse you’ve seen in the movies and on TV, with the grand, high run of steps and massive columns in front. They used up all the space at that one on steps and columns, and didn’t leave enough room for actual courtrooms, so most trials actually take place down the block at a location rarely mentioned, other than in a short-lived TV series named for the address, “100 Center Street.” This one takes up a half a block, and is about 20 floors high. Here they have room.
Since judges like to schedule trials to start with the week, Monday morning is the busy time for jury selection, and the place was packed, with four or five hundred people milling about with nothing to do. They showed us a short video, kind of a “What to expect when you’re called for jury duty” presentation. We all watched, even though the only interesting thing about the entire video was that it was hosted by the cast of “60 Minutes.” It wasn’t terribly informative about anything that would happen after we left the room we were in, mostly just repeating the stuff they had already shouted at the room. And it told us we would probably be there for a couple of days.
Other than the video it was very boring, there weren’t enough chairs, and in general it was a lot like being at the DMV, but without the exciting, anticipatory bonus of getting your driver’s license renewed. You were allowed to leave, checking in and out with the clerk to go to the restroom or have a smoke, but if they called your name while you were gone you went to the bottom of the pile, which could cost you hours, if not getting you called back the next day. Everyone knows the goal of jury duty is to get out as quickly as possible, so that meant that even though it was excruciatingly dull, I kept my breaks to a minimum.
During the morning, they called two or three groups of 26 each, and headed off to various courtrooms, but I sat and waited in vain listening for my name, until they told us it was lunchtime. I spent the extremely generous time period eating street dogs, and talking with the folks back in the office, because not being in the office didn’t mean that I didn’t still have to do my job. I told them I still didn’t have any idea how much longer I would be there. But as soon as we got back in, they started calling names again. And calling names. And calling names. Ninety-nine in all, including me.
I thought to myself, “Uh-oh.”
You see, my thinking was that if they pick 99 people instead of 26, that means they are expecting to have trouble getting a jury for the case. That means the case is going to be a mess, and since we were in criminal court, it was going to be a murder.
They finally got all of us up to the 15th floor, to the Supreme Court of the State of New York, Part 93, Judge William L. McLaughlin presiding. I was close to the back of the room, and what a room it was. I watched the original “Law & Order” for the first 30 or 40 years it was on, so I was curious to see if the room matched my expectations. It was surreal. With one exception, it was absolutely identical to the set of that show, that exception being the lack of the watercolor paintings on the walls, which were painted white instead. Otherwise, it was perfect.
They swore us all in, making us promise to be good little potential jurors, and tell them the truth during the selection process, and then they read out the names of the Assistant District Attorney, and the defense attorney, asking if any of us knew either of them, or had any business dealings with them. Nope. Then they read a third name and this one seemed tantalizingly familiar. During those days, I was a consulting nomad, and I met a lot of people. I was wondering whether I should raise my hand, when they mentioned that he was the District Attorney of New York.
Finally, they read two last names, and when no one responded, had a tiny girl, who looked about 14, stand up and face the courtroom. She was light-skinned African American, vaguely cute, although her face was blemished in some way that the distance made difficult to see. Did we know her? It dawned on me that I was looking at the defendant.
The prosecutor started by reciting the bare facts of the case. The defendant stands accused of killing the victim, a livery driver, in his car, on that night in 1997, by firing a single shot into the back of his head as he tried to escape during an attempted robbery. He had $10 on him. She was two weeks short of her 14th birthday at that time, but the court had ruled that she would be tried as an adult. And then the clerk read out the charges in the case of the of People vs. Marta Casiano, a.k.a. Martha Nelson.
2nd Degree Murder – Intentional Murder
2nd Degree Murder – Depraved Indifference Murder
2nd Degree Murder – Felony Murder
1st Degree Voluntary Manslaughter – Reckless Disregard for Human Life
2nd Degree Involuntary Manslaughter – I don’t remember the exact charge, but it was similarly based on reckless behavior.
That’s a lot of charges for one bullet.
Although it was hinted at during the testimony to come, they never explained to us why she was being tried as an adult; I learned that months later, along with why the charges read “a.k.a. Martha Nelson.” At the time of her arrest, she produced a fake ID with that name, and an age of 17. She had also successfully used that ID during an arrest six months earlier. They didn’t find out her true name and age until long after she had been booked, arraigned, and charged with murder; I believe it was actually months later. At that time, the ruling was made that since she had so convincingly portrayed herself as 17, and thereby eligible to be tried as an adult, that she had proven herself competent to stand trial as such. Word to the wise, kids.
They called 16 names, put them in the jury box, and the process began. They started questioning the first candidate, and everything was going great until they asked the final question: given that the prosecution proves the case beyond a reasonable doubt, can you find the defendant guilty? The guy answered, “I can’t convict a 13-year-old girl of murder. I just can’t do it.” They excused him, telling him to go back downstairs and wait to be called for another jury. They questioned the second candidate; same question, same answer. And the third. And the fourth. And the fifth. The judge was becoming visibly annoyed. He called the lawyers up to the bench, put his hand over the microphone, and talked to them for a minute, before shooing them back. Then he addressed all of us.
“Anyone else who is going to answer that question in the same way, go back downstairs and wait to be assigned to a different jury.”
74 people stood up and walked out of the room, and there were 20 of us left. My odds had gone way up, or down, depending on how you looked at it.
I really wanted to go; that was my big chance to not get stuck in this thing. But they made us swear… dammit. And the truth was I could do it. I already saw that I could just treat this as another work assignment, and be entirely detached about it. My job involved analyzing situations, and coming up with the best solution I could, while working within a strictly defined set of boundaries. Wasn’t that the job here too?
I got called up to the jury box, and when they got to me, went through the laminated list of questions. Since I had already answered the hard one, there was only one chance left for me to escape. “Have you, or any members of your immediate family ever had any negative experiences with the police, or been the victim of any crimes?” I figured my only chance was to show that I had ample reason to dislike both groups, and make both sides want me gone. I started with my oldest brother getting arrested on his graduation night in 1974, and worked my way forward, eventually getting to my own history, paying particular attention to the three-week period where I was held at gunpoint by first the police, and then an armed robber … uh, along with the other stuff. Finally, I finished, and sat back waiting to be excused. I had them; there was no way they were going to want me. The judge queried me about the two incidents, and then looked at me and said, “Got anything else?”
“Uh … well … I always have issues with my job, but the way my summons was marked, I don’t that’s going to get me out again.”
He smiled at me and said, “Think of it like being drafted. Greetings.”
Nobody got out. They wanted 16 (jury and alternates), and the first 16 people they talked to were selected. I did have the most stories to tell though … by far. (Winning!) They swore us in again, and told us the rules; don’t read about it or watch TV about this case, don’t talk to anyone about it, and so on. Be back tomorrow at 9am, and most importantly, if you’re going to be even five minutes late, call us and tell us so we can plan for it. And they gave me a badge; actually just a convention style name tag with “JUROR” printed on it, and “#9” written in felt tip.
The lateness factor came into play the next morning, when Juror #11 didn’t show. I had noticed the guy the day before. Joe New Yorkv… dressed in head-to-toe black, stylist hair, tinted glasses, cell phone surgically attached to his ear; you know the guy. He got there an hour late, and then fell asleep through the entire afternoon, completely missing the first couple of witnesses. And after that day, we never saw him again. I still don’t know what happened to him, but I like to think that the judge put him in Rikers Island long enough for him to become comfortable dressing like a girl. I doubt it, though.
As we were sitting in the jury box before the opening statements, one of the jurors, call him Adam, brought up the movie 12 Angry Men. Some people weren’t aware that there were two versions, so there was some confusion, but it became clear later that Adam went into the trial with Henry Fonda on his mind.
The cases for the prosecution and defense can be summed up by their opening statements. Although no one disputed the fact that the defendant had pulled the trigger and killed the guy, the prosecution case still included a chain of evidence showing that the girl was in possession of the gun, that the gun was the murder weapon, and that she had pulled the trigger. But it was in discussing the reason behind the robbery that it got complicated.
There were four people involved: the defendant; her boyfriend/gang mate, street named “Cash,” 20; the other young woman Erica, 19; and her boyfriend, 20. All but Erica’s boyfriend were members of the Bloods street gang. It started when Erica tried to leave the gang and the life behind. The defendant, known as “Love,” was, even though only 13, something of an enforcer within the gang, and she was having none of the idea of the other girl leaving. She and the gun went looking for her, with “Cash” in tow. They had several wacky adventures confronting people with the gun, and checking with allies, in one case accidentally firing the gun through the wall in an apartment, with the bullet ending up embedded in bathroom tile.
They eventually found Erica holed up at her boyfriend’s place, where he lived with his mom in the projects. They forced them out into the hallway at gunpoint, and then when Erica resisted rejoining the gang for an extended period, “Love” forced her to strip, and then kneel down in turn in front of each of the two guys, and beg them to allow her to perform oral sex. Both declined.
After more than an hour of being terrorized, Erica finally relented. “Love” decided that she needed to be reinitiated, and here we got the explanation for the marks on her face. Girls joining the gang had three choices for initiation: get the snot beaten out of you by the whole gang; have sex with as many male members are interested in participating; or have your face slashed on both sides with a razor.
After slashing Erica’s face, “Love” further decided that to seal the deal Erica had to commit a felony, and since they had the gun, armed robbery was the way to go. They made a call for the livery car, giving an address a couple of blocks from where they were, and headed off to do the deed.
There were some things that were odd about the way the case was presented, and that were very different from what you see on TV. Take objections, for example. On TV, they say, “Objection, argumentative,” or, “Objection, assumes facts not in evidence.” Well, they don’t actually do that. They say, “Objection” and the judge says “Sustained” and they don’t explain why. I could only figure it out about half of the time.
The prosecutor was reading all her questions from a large three-ring binder, that appeared to also contain the answers that she would be getting, which seemed odd. Never saw Jack McCoy do that.
And there was testimony from witnesses who didn’t appear in court, including Erica, who we were told was sentenced to 13 years for her part in the crime. They read a long block of testimony into the record, that we were told was from “another proceeding,” without any explanation of when, where or why that testimony was given.
This was another one of things that we weren’t allowed to know. What makes “Law & Order” interesting is the obscure precedents and clever legal maneuvers, but when you’re in the jury you don’t get to hear any of that. They take you out of the room whenever any interesting is going on. Therefore, they didn’t tell us that the reason this trial was taking place five years later was that it wasn’t the first trial; it was the third. The two previous attempts had ended in hung juries and mistrials. In the second, the jury reached a verdict, but one of the jurors recanted, freaked out, and left the court in an ambulance under sedation. Erica’s testimony came from one of those earlier trials.
It was hard to believe, but even in a trial like this, it was boring, which might help explain the last point…
The defendant was never awake during the entire trial. I would have thought that was weird, except two or three of the court officers were doing the same; sleeping all day long.
The highlight of the prosecution’s case was the videotaped confession. We watched a sullen, remorseless and unrepentant defendant say, “I told if he moved I’d shoot him. He moved. I shot him.” It was delivered in a tone that suggested only an idiot would have trouble understanding why she did it. I mean, c’mon, he practically shot himself.
There was only one witness who even mentioned the victim much, his brother, brought in to put a human face on the victim.
The defense case was simple; jury nullification. Yes, she committed the crime, but she shouldn’t be held responsible because she was: very young; very, very stupid; and extremely sympathetic. It might seem like a long shot, but hey, it had worked twice already.
So … young I get, but we already knew that the court had decided she would be tried as an adult, even if we didn’t know why, so that didn’t seem to carry much weight.
To establish her stupidity, the defense brought in a psychologist, who reported that her IQ was only 80. But he was a lousy witness, and during the rebuttal, the prosecution supplied two state psychologists who said it was 90, not 80, along with a third psychologist who had reviewed the analyses of the other three, and also agreed it was 90. But regardless, if we excuse criminal actions by stupid people, you can go ahead and empty the prisons, because I guarantee you that the average IQ for state prisoners is well below average. Once again, not much weight.
But she was sympathetic. Oh man, was she. She had been lucky enough to beat the odds and grow up in a household with both biological parents, but unlucky in that her father beat her starting at a young age and began regularly raping her when she was 10. She ran away at 11, and very quickly joined the gang, becoming a zealot, because it’s all she had. I was thinking about a line from the movie Manhunter (the original prequel to Silence of the Lambs), where the FBI profiler says about the killer, “My heart bleeds for this guy as a child; as an adult, I want to blow him out of his socks.” I was trying to decide if that’s the way I felt here.
Near the end of the 12th day of trial we got the case, and headed back to the jury room. We only had time to go once around the room for initial thoughts, because even though the judge expected us to stay until at least 9pm deliberating, since we had gotten out every day by 3:30 and didn’t know that we would be getting the case that day, at least half of the jury had plans, including me. I had a 6:30 conference call scheduled with India. (Not the whole country, just my team.) The judge was pissed, but dude, it’s called managing expectations.
We really got going the next morning, a Thursday. We almost immediately violated the judge’s orders … of the charges, the third, Felony Murder, was to be considered independently. The others were meant to be considered one at a time, in order, until we voted guilty on one of them. But there was a question on whether the video should be considered, the theory being that she was so stupid to have said that stuff, that her stupidity invalidated her right to give up her right to remain silent.
We hadn’t taken a vote yet, but it was already clear that it was 8-4 in favor of guilty, with at least two of the four ready to vote guilty if they considered the confession. One of them, Adam, immediately established himself as the spokesman for the “not guilty” side. Our replacement #11 said that he thought he could make a case for the second charge, even without the confession, so we put aside the top charge and started talking about the second one, Depraved Indifference Murder. Depraved Indifference means that if you create a set of circumstances (in this case shooting someone in the back of the head), where it is foreseeable that someone may die, and then someone does, in fact, die … then that is murder.
During the day, an interesting dynamic appeared. The room has both a men’s room and a ladies’ room attached, and they bring lunch in, so you are stuck there when deliberating. The rules said that we couldn’t discuss the case unless all 12 of us were in the room, so whenever things became contentious, someone would take it on themselves to walk into one of the restrooms, thereby halting the conversation. I produced at least one of those impromptu breaks myself on Thursday. As the day progressed, I found myself more and more in the role of spokesman for the guilty team, and at one point Adam told me that I don’t have any empathy at all.
I answered, “That’s not what we’re supposed to be doing here. We’re supposed to be considering evidence, analyzing the facts. The fact that she has a sympathetic history shouldn’t enter into it.”
He shot back, “Sympathy and empathy aren’t the same thing.”
“Fine, I’ll empathize, but you’re not going to like it. Apparently, you’ve forgotten from the jury selection, I’m the guy with the gun to the back of his head. I don’t empathize with her, I empathize with the victim. For that matter, how about his brother? I’ve got three brothers myself, and if some little psychopath shot one of them over 10 dollars, I’d not only want her convicted, I’d want her fried to a crackly crunch! How do you like my empathy so far?”
I didn’t actually say that last paragraph, for the main and simple reason that I didn’t think of it until an hour or so later. At the time, I believe my response was, “Bite me, [expletive]!” followed by a quick restroom break.
We went from 8am until 9pm, with Adam bringing up one theory after another why she shouldn’t be considered guilty, most of which had nothing to do with any evidence that was presented during the trial. It became clear to me that he saw himself as Henry Fonda, ready to convince us one by one, and prevent us from convicting an innocent. The only hitch was, she wasn’t innocent.
After we called it a day, I went home and didn’t sleep at all. At about 4am, I wrote out two questions that I thought might help move things along.
We were back at it Friday morning, and spent until lunch, working our way through Adam’s theories. When we started back up after lunch we were down to just two, one of which we had heard the day before, and one that was brand new. Now, although I had managed to wheedle the court officer into letting me have a smoke break on Thursday, on Friday there was no such luck, so by this time, between that and then endless stupid, I was getting kind of cranky.
The theory we had already heard was that the poor girl was just a helpless pawn, acting at the behest of the evil Cash. That everything that had taken place, happened at his direction, planned down to the last detail, and that she was just a slave of her Svengali-like master. Uh, yeah … okay.
The new theory was something special, and he was obviously very proud of himself for thinking of something so clever. See, the gun was so big and ridiculously evil-looking, that maybe she didn’t realize it was a real gun, and didn’t even know it was dangerous.
The room exploded into at least nine different versions of, “You’ve got to be kidding,” most of them expressed in language far saltier than that. People were so busy yelling that no one remembered the restroom. When things finally quieted down, I started talking to Adam.
“The only reason we are still here is that you lied during the jury selection. You swore that if the prosecution proved their case you would vote guilty. Well, they did, but you just can’t bring yourself to do it, can you? So you sit here spouting one ridiculous theory after another.”
He objected to me calling his theories ridiculous, I pointed at the reaction his latest had just gotten, told him it was way nicer than what I was thinking, and then took great pleasure in doing my best to quote Henry Fonda back at him:
Juror #9: We want to hear your arguments.
Juror #4: I *gave* you my arguments!
Juror #9: We’re not convinced. We want to hear them again. We have as much time as it takes.
We went back and forth, getting increasingly nasty with each other, with him eventually getting stuck saying repeatedly that he had a reasonable doubt, until I finally told him that he didn’t have a clue what the Hell reasonable doubt even meant. He shot back that I was the one who didn’t know.
Somewhere during this exchange, we both ended up on our feet, on opposite sides of the table, leaning forward almost nose to nose, while people were now diving into both restrooms; it looked like things were going to get ugly. And you know the kind of fight you’re going to get from an economist and a computer programmer.
Luckily, the restroom gambit worked one more time, and when things had cooled off and everyone was back in the room, we decided to send a question into the judge. I whipped out the two questions that I had written the night before, one of which I had done in anticipation of exactly this circumstance.
“The jury requests a plain language definition of the phrase ‘reasonable doubt,’ particularly the distinction between possible and reasonable.”
Everyone agreed with the language so we sent it in, along with another question someone else wanted to include, as long as we were asking questions.
“Does the jury have to agree unanimously on whether to consider the videotaped confession?”
Every time we asked the court anything it took them at least two hours to get everyone in the room before we entered. After the usual interminable delay we were taken into the courtroom, and we got our answers. The judge answered the second question first; it was up to each juror to decide whether to consider that confession. There was no requirement for unanimity.
To answer my question, that would resolve the dispute between me and Adam, the judge decided to read the instructions he had given the jury on another case, where the same question was pertinent. He started to read, and it was as if he had been listening at the door to everything that we said. It rapidly became clear that only one of us understood the concept correctly, and that it wasn’t Adam.
Give the guy the credit he’s due. When we got back in the jury room, he immediately said that he was wrong, and that if we wanted to vote again, he was ready to vote guilty. We did, and he did, it was unanimous, and that was it, we were done. Or so we thought.
Even though everyone had been gathered in the courtroom only 10 minutes before, it still took them the usual two hours to get everyone back before they brought us in. During the wait, I walked over to Adam and we made our peace. Finally, we went back in. The defendant was conscious, the first time we had seen her awake since she stood up in front of the prospective juror pool. She looked scared, and rightly so. See, we weren’t supposed to come to a verdict. She was expecting another hung jury, and that she would be getting out in a few days, because they were never going to try it a fourth time.
The foreman read off the verdict. Intentional Murder – Not Guilty. Depraved Indifference Murder – Guilty. Felony Murder – Guilty. The defense attorney had one more card to play, a real Hail Mary, demanding that the jury be polled, hoping that someone would crack and refuse to go along in open court, thereby producing another hung jury and mistrial. They polled us one at a time; Juror #1, Juror #2, and sounding like the High Council of Krypton convicting General Zod, each of us answered in turn.
The judge registered the verdict and thanked us for our service. In recognition of the fact that this was a particularly difficult case, he told us that rather than the usual four years, none of us would be required to serve on another jury for at least eight years. (Fat lot of good it did me; I moved out of the state five months later.) Then he dismissed us and we left. It was after 8pm by then, a bitter cold January night, so after a quick goodbye everyone went their separate ways.
I learned later that she had received the maximum sentence, 25 to Life.
As far as winning goes, yeah, I won. And it tasted like ashes in my mouth. Don’t get me wrong. I still believe I made the right decision; if you put me in the same situation with the same facts, I would do it again. And we did the job we were supposed to do, even though it was ugly from start to finish. It just would have been nice to be able to feel good about it.
(Final note: I never got a chance to use my other question, a simple, yet devastatingly brilliant ploy of impeccable logic, designed to demolish Adam’s Svengali argument. I’m not going to give you the question; this has gone on too long already. But I’ve given you every piece of information you need, and the careful reader should be able to guess. If no one comes up with it, I’ll tell you in the comments. Hint: think like a guy.)