More time has passed since my first post than initially intended, but my wife and I recently welcomed our first child into our lives…I don’t think any further explanation is necessary. The last month has redefined many things for me personally, one of which being my definition of free time. Not long ago I would have defined “free time” as an afternoon or at least few hours where my attention/presence was not required. Now, “free time” is the drive to the Courthouse or maybe 30 minutes at the office to do some aimless web browsing.
During a rare stretch of “free time” I came across the short film (approx 6 mins) titled the Umbrella Man, by filmmaker Errol Morris. It is not directly related to criminal defense, but for me, it provided an interesting example of something criminal defense lawyers are forced to deal with constantly…”sinister facts.” Sinister facts in criminal defense are those that may have a perfectly innocuous explanation if observed in a broad context, but when a particular event is put under a microscope and cut off from the broader context, the prosecutor is free to attach unrelated and unintended meaning to those facts. Much like in the case of the Umbrella Man, the sinister explantion of the facts is often more plausible, or perhaps more attractive than the actual explanation. Embedded here is just a small clip but I recommend watching the full 6 minute version linked above.
This came up in a recent drug casel and resurfaces in all types of cases. Currently in New Jersey (hopefully not for long) the prosecutor is allowed to call a drug distribution “expert”. The “expert” is essentially a former narcotics detective that has reviewed the evidence in a particular case and (based on their training and experience) will testify that certain facts are consistent with the sale of controlled substances. He/she will testify that the amount of the illicit substance, the packaging, amount of cash present and denominations are consistent with drug distribution. Essentially, the “expert” applies the Umbrella Man concept and attaches the most sinister motives to a certain set of facts.
For example, a defendant is arrested in possession of a relatively small amount of drugs, lets say 8 bags, individually packaged and the defendant is also found to be in possession of $300 in small denominations ($1, 5 10). For arguments sake, let’s just say that possession is unassailable and there will be big difference if client is convicted of possession with intent to distribute, rather than simple possession. The prosecutor, under the Umbrella Man theory, will argue that the cash is the proceeds of drug sales and the individually packaged drugs are his/her remaining inventory. The defendant has multiple prior convictions, so he can’t just explain that he is a heavy user and earns his money from tips at a carwash/gambling/bar tending.
The challenge for the defense is neutralizing these facts by illustrating the broader context. The defendant lives is a horrendous neighborhood, in a small apartment with 6 other family members, some are not trustworthy, all in need of some cash. Would you leave your money there? Of course not, money belongs in a bank. But people forget that banks have minimum balance requirements. You could probably deposit $300 with no problem, but you wouldn’t be able to take that money out. If the balance dropped below $200, suddenly you are paying the bank at $20 a clip and eventually, you owe the bank money. Bank accounts aren’t feasible for people working under the table or paycheck to paycheck. The average juror will not understand this, similarly the average juror will not know that 8 bags may be a light weekend for a moderate user. Here, the sinister explanation is much more simple and easy to digest than the other explanation which requires traveling and adopting some socio-economic fundamentals.
There are countless ways to juxtapose the foregoing facts, and I got further off topic than I intended, but I’m not going to lay on the delete button at this point. This can apply to any number of alleged crimes. To paraphrase the film, I think the main point is that if you examine the surroundings of any event, you are going to find some weirdness and often the actual explanation may be less satisfying, even less believable, than the sinister motives that can be derived from the facts. The challenge is getting jurors to acknowledge their own weirdness. What if a crime occurred in your life at this particular moment? What inferences would be drawn from the last website one visited, a recent sarcastic text message, outgoing phone calls, spouse’s insurance policy or any number of innocuous facts that could be twisted against an accused if the circumstances dictated.
Again, here is the link to the full video at NYT, not earth shattering, but interesting and made me think a little.