Yesterday, a Maryland jury acquitted my client of possessing with intent to distribute eight pounds of marijuana found in the backseat of his car, after we had lost our suppression hearing and were without a successful way to create doubt that this was anything other than marijuana.
I am still in ecstasy over this win. It is a great counterpoint to the many times that my clients are caught redhanded and backed into the corner to work doggedly at negotiating a plea deal that will be significantly better than the sentencing risks attendant to going to trial. Then again, the maxim continues that preparing a case to go to trial makes it more likely to settle, and preparing a case to settle makes it more likely to go to trial. Consequently, in negotiating litigation settlements, I do so simultaneously to preparing to the hilt and fully armed for trial battle.
My jury acquittal yesterday arose after some noteworthy events in this litigation that I share as follows:
Last year, police were monitoring incoming mailed packages at the airport transit location (so much for privacy of our mail), and took notice of a package addressed to my client, for its weight (several pounds), its delivery price, and the addressee’s name (possibly fictitious, thought the police, when in reality it is my client’s true, but not common, name). The police trailed the package (package S, for “smell”) to my client’s post office box, found my client leaving the post office with package S, stopped my client’s car on the pretext of running a stop sign, and continued their hunt.
Sitting there in my client’s backseat was package S, containing four packages of vacuum-packed marijuana inside a plastic file folder box, inside a cardboard box filled with packing peanuts. With all those barriers to smelling marijuana in the box, the stopping police officer still testified, at the suppression hearing held earlier this year, to having smelled marijuana in the car, with its origin coming from package S. The officer followed my client knowing that he had picked up package S. This stop, then, was a pretextual stop meant more to investigate package S than to check for any traffic violations. Did the officer, then, imagine smelling marijuana, in the expectation of finding it?
We mounted a full-frontal assault at the suppression hearing, fully challenging how the police officer who stopped my client’s car could have had probable cause to believe that marijuana was inside package S. Simple, the officer, testified: “I smelled marijuana.” Not so simple, I replied, for any human to have smelled marijuana so carefully sealed, while standing outside the car. We presented the testimony of premier marijuana smell expert Richard Doty, who has been qualified by other courts as a marijuana smell expert — to show how difficult it would have been for the police officer to have smelled the unburnt marijuana in package S. The suppression hearing judge substantially limited the scope of Dr. Doty’s testimony, not only for the suppression hearing but for the law of the case to apply at the trial, as well, by precluding Dr. Doty on testifying about whether the searching officer could have smelled the marijuana in package S before opening it. Had we lost at trial, this would have been a great appellate issue.
Without Dr. Doty’s opinion on the ultimate issue of whether the searching officer could have smelled the unburnt marijuana, the suppression hearing judge denied our motion to exclude the seized marijuana.
At trial, we brought back Dr. Doty. The trial judge declined for Dr. Doty to testify as a marijuana smell expert versus a smell expert in general (thus creating an additional appellate issue), and then precluded Dr. Doty from testifying about such critical items as his study of people’s ability to detect packaged marijuana, and to testify about the very limited dissipation of marijuana odor that would have taken place between the seizure date and the date that he examined the marijuana packages.
Dr. Doty, at trial, was permitted to testify to the following:
– When he examined the marijuana on the day of the suppression hearing, he only detected a faint smell of marijuana, and that was at the point of each package where the officer had used a core sampler to remove a portion of the marijuana to send to the chemists’ lab. Marijuana odor would not have emanated from those package points before the officer stopped my client’s car, because those holes did not yet exist.
– Multiple barriers around an odor producing substance — similar to the barriers involved in our case (vacuum-sealed packages surrounded by a plastic file box surrounded by a cardboard box) would have reduced the opportunity to identify, by smell, the material contained inside the package
– Even assuming that one person smells a pungent odor, that does not automatically mean that another person standing in the same place will also smell it.
– Many factors affect people’s ability to smell an odor, both internal and external factors, including wind, stuffed nose, and general perception abilities. Women also generally smell better than men, but I did not focus on that, because no women testified about the marijuana’s smell.
One of my favorite questions posed by the prosecutor to Dr. Doty was whether a person trained in detecting a particular odor might be more likely to detect the odor than an untrained person. Answer: Yes. BINGO! Even if the officer did smell the marijuana coming from package S, it does not mean that my client smelled it. One cannot be found guilty of possessing illegal drugs nor other contraband — let alone guilty of possessing with intent to distribute such material — without knowing of the presence of the contraband, and having dominion and control over it, as well. Livingston v. Maryland, 317 Md. 408, 564 A.2d 414 (1989). We brought Dr. Doty to trial to eliminate the jury’s deciding that my client knew, from his sense of smell, that marijuana was in the box.
Starting with his opening statement, the prosecutor targeted my client as a “drug dealer” caught red-handed. However, that was countered from the get-go by my client’s angelic presence and persona at all times, and perhaps, in the jury’s mind, by the distinction that more and more people see by now between those who sell marijuana versus those who sell such more harmful drugs as cocaine and heroin.
As I have long known should be done, I did my best to talk with the jury as if I were the thirteenth juror, as firmly gentle and caring at once for my client and all the jurors as was the Henry Fonda character in Twelve Angry Men, without legalese and with persuasion through storytelling and conversation — including rhetorical questions in place of hearing from the jurors, who are not permitted to speak to the lawyers during trial. In Practical Jury Dynamics, amazing human, trial lawyer, and storyteller Dr. SunWolf says of amazing Denver criminal defense lawyer Lisa Wayne that Lisa loves her jurors and they love her back. Having true human love for everyone is not about being soft and weak, but about acknowledging that we all are connected and that compassion for everyone is essential. When a trial lawyer opens up honestly and relevantly to a jury, the jury is more likely to open its heart to the lawyer. The magic mirror takes hold.
I shared with the jury how law enforcement had exclusive possession of the marijuana from package S for nearly a year, but never bothered checking the vacuum-sealed packaging, the black file box, nor the cardboard box for fingerprints. I asked in closing: “Didn’t the police want to make sure they found the actual perpetrator?” The prosecutor called a police “drug expert” to the witness stand — over my objection — who testified that usually he does not need to seek fingerprints when the drugs are found with the suspect, and that he has only once obtained a good fingerprint from a cardboard box, a cereal box. His reasoning was circular, though; if he usually does not find a need to seek fingerprints, he is not in a position to know whether fingerprints can ordinarily be obtained from a cardboard box.
And what about the police failure to check the black file box for fingerprints? During closing argument, I placed the black box directly on the table in front of the jury, pressed my thumb to it, and invited the jury to see how fingerprint impressions are easily left on that box.
The prosecution presented one civilian witness — other than the chemist, who is a police department employee –who testified that, at the time of the incident, he shared a nearby apartment with my client, that he smelled marijuana before from my client’s room, and that my client had brought several black plastic file boxes to the apartment before. However, when the prosecutor asked this civilian witness how similar said boxes were to the box in package S, all the civilian witness could say is that it was a similar type of box rather than a matching design. BINGO, especially since black is a popular color for plastic file boxes.
Over my hearsay objection, the judge let into evidence not only the mailing label on package S showing my client and his Maryland post office box as the package’s destination, but also the photo of another mailing label from another package (with unknown contents) that arrived the previous day at the airport, with the same listed sender to my client’s same post office box.
How to get out from a conviction here? Why would someone send such valuable marijuana to anyone but himself or herself, or to the buyer of the product? Why did my client have a post office box when he had a nearby apartment for receiving mail? Why did he put package S in his car without first checking what was inside?
I caressed before the jury the jury instruction requiring an acquittal absent proof of guilt beyond a reasonable doubt and also the jury instruction requiring knowledge of the presence of contraband before being convicted of the contraband. I said that we receive unsolicited items in the mail all the time. For a box, it is easier to open it at home with a knife or scissors rather than to use one’s fingers at the post office. I pointed out that if someone sends me a stolen diamond ring, unsolicited, I am not guilty over the stolen diamond ring. I pointed out that to this day we do not know who mailed that marijuana in package S. We do not know whether it was someone seeking to send a gift to an admitted marijuana user. We do not know whether the sender was setting up my client. I asked: “How has our society come to the point where we can be prosecuted and convicted for being sent unsolicited contraband?”
I recapped the reasonable doubt in this case:
– The prosecutor got my client’s cellphone into evidence, but did not show any text messages nor other communications between my client and customers or suppliers. Nor did the prosecutor present any evidence of any money in my client’s hands, nor about a customer source for money (for instance, buy and owe lists). Clearly, if my client is a drug dealer, he is in it for the money, but the trial evidence does not show that. Show me the (non-existent) money, I challenged.
– My client did not smell any marijuana before his car was stopped by the police. “Did you smell marijuana,” jury? Several times during cross and direct examination, I made sure that package S got opened nearby the jury, and that I took out the marijuana packages, expecting the jury would not smell marijuana. During closing, I even brought one of the two-pound plastic packages of marijuana straight against my nostrils, inhaling deeply, and asking where was the marijuana odor. The police officer only testified that he smelled marijuana, but did not quantify it. The prosecutor pointed out that the marijuana had been packaged with the criminal intent to avoid detection. BINGO! Then my client would not have smelled it either.
– The police failed to check the evidence for fingerprints — a quick and inexpensive procedure — even with my client’s liberty on the line.
– The officer who seized and searched package S testified at the suppression motion hearing that he had discarded the outer cardboard box of package S (oops!). However, package S mysteriously reappeared at trial (abracadabra!).
– Humans cannot have x-ray vision into package S. I asked the jury in opening and closing: What is behind the wall behind the judge’s chair? What is in my pocket? Who knows?
During closing, I encouraged the jury to take as much time as it needed to decide this case. I pointed out that the judge had estimated during jury selection that the case might take as many as three days to get to the jury, and instead it took two days, leaving ample time for deliberation. I pointed out that despite there being a foreperson, that every juror has the equal right to get a written question delivered to the judge. I talked about how Twelve Angry Men so aptly illustrates how important it is for the jury to fully deliberate, and about how in Twelve Angry Men, the jury — all men during those more sexist times — transitioned from a slew of jurors being angry at the lone holdout juror for acquittal, who ultimately convinced them one by one also to vote for acquittal, for the scared, poor Hispanic murder defendant, by such brainstorming revelations as the unlikely prospect that a switchblade was used to stab a taller man downwards rather than upwards, the unlikely possibility that an eyewitness with a limp actually got to his front apartment door to see the defendant running away, the unlikely possibility that he heard any voices over the scream of the elevated train, and the likelihood that another eyewitness was an eyeglass wearer, and doubtfully had them on when woken up by the commotion that she claimed to have witnessed.
The jury returned yesterday morning to begin deliberations. Four jury notes came close in time, within around the first thirty minutes of deliberations, authored by at least two or three different jurors (as I had invited). As we waited for our case to be called, to discuss the notes, the courtroom door leading to the hallway to the visible door to the jury deliberation room was open. I heard animated discussion from the jurors therein; What a wonderful sound that was.
Several, if not all, questions seemed favorable, and none unfavorable. The questions included inquiries about the smell of the marijuana, whether the odor was of burnt or unburnt marijuana, probable cause, and more details on the search of package S. One note asked about the potential punishment faced by my client. I wondered if a hung jury or acquittal was in the making. Were any jurors concerned about my client going to jail for this, or about whether police truly had the probable cause to seize and search package S to begin with?
The judge responded for the most part that the jury had all the legal instructions and evidence that it was going to get, and that probable cause and potential sentencing were not matters for jury consideration. No jury notes followed thereafter.
After two and one-half hours of deliberation, the jury had a verdict. When O.J. Simpson’s murder trial jury filed into the courtroom after having reached a verdict that would be announced the next day, none of them seemed to be looking at him, which turned out not to be a sign at all about the jury’s verdict. We do not know how a jury will rule until announcing the ruling.
The courtroom clerk asked the foreperson if the jury had reached a verdict. Instead of simply answering “yes”, the foreperson said “not guilty”. Yow! What a difference a jury makes! When denying my motion for a judgment of acquittal, the trial judge told me that the prosecutor had presented enough evidence to blow a submarine out of the water. Any judge, not just our judge, would have found my client guilty.
I may never know why specifically the jury acquitted my client, but am deeply grateful to this jury for fully deliberating and investing its time and attention to our case. I believe the jury reached the right result with the evidence and jury instructions presented to it.
I deeply thank my client for this opportunity to defend him, and my staff for their hard work on this case.