By Mark Alpert
This week I was on a jury that sent a young man to federal prison. In my opinion, he definitely deserved the guilty verdict. But that doesn’t mean I feel good about it.
This was the first time I’d ever served on a jury, even though I’ve been summoned for jury duty on several occasions since the 1980s. New York tightened its jury-duty rules a few decades ago, making it harder for people to slip out of their civic responsibility, so the state and federal courts now have a large pool of potential jurors to choose from. On my previous visits to the various courthouses in Lower Manhattan, there were so many people thronging the juror assembly rooms that I never even got chosen for voir dire, when jurors are asked questions about their backgrounds and possible prejudices. But this time I was selected for a criminal trial in the federal courthouse on Foley Square, a monumental building designed by Cass Gilbert and constructed in the 1930s (see photo above). Massive Corinthian columns loom over the courthouse’s entrance, and carved into the granite portico are portraits of four ancient lawgivers: Plato, Aristotle, Demosthenes, and Moses.
Although my novels feature plenty of police officers and FBI agents, I’ve never written a legal thriller, and now I’m glad I didn’t attempt it, because I surely would’ve gotten it wrong. During my brief exposure to the court system I learned a few surprising things that I never saw on Law & Order or any other TV show. If you want to write a courtroom scene, please pay close attention.
Our trial took place in federal court because the defendant had been arrested by agents of the U.S. Drug Enforcement Administration. The young man was charged with selling fentanyl, the synthetic opioid that has recently become the deadliest of all illegal drugs, killing more than 28,000 Americans each year. On four occasions during September and October of 2017, the defendant sold hundreds of fentanyl pills to his barber, who’d told the young man that he would resell the drugs to customers he’d found in North Carolina. In reality, though, the barber was a confidential source for the DEA. He was assigned to inform the agency about drug dealing in Manhattan in exchange for payments from the federal government and (in this informant’s case) deferral from deportation.
There was no doubt at all that the defendant had sold the drugs to his treacherous barber. The informant had worn a hidden camera and microphone to record the transactions, and afterwards he’d immediately handed over the fentanyl pills to the DEA agents. (The pills, which we saw in the evidence bags, were bluish, and each was stamped with the label M30.) But the defendant’s lawyers presented an entrapment defense. They claimed that the barber had persuaded and pressured their client to sell the drugs. If not for the informant’s wheedling, they argued, the defendant would’ve never committed such a crime.
Entrapment can be a legitimate defense. No one wants to live under a government that uses secret agents to lure innocent people into committing crimes. And in this particular case, there was some reasonable doubt as to who first suggested the fentanyl sales. The barber testified that the defendant offered to sell large quantities of the drug, and the defendant testified that the barber brought up the idea. There were no recordings of these preliminary discussions in the barbershop; the informant said he didn’t start taping their conversations until he got authorization from the DEA. What’s more, the informant wasn’t an especially believable witness. He’d been convicted of a drug crime twenty years ago, and after serving his sentence he’d been deported to the Dominican Republic. Then he slipped back into the U.S. illegally and faced deportation again. Working as a source for the DEA enabled him to stay in New York with his family, so the defense lawyers argued that he had a motivation to propose and facilitate drug crimes.
But even if the informant proposed the drug sales, that wouldn’t be enough to prove entrapment. According to federal law, the defendant couldn’t be entrapped if he already had a predisposition to commit the crime — that is, if he was ready, willing, and able to sell the fentanyl pills. The U.S. district judge in this case (the Honorable Katherine Polk Failla) outlined the three indications of predisposition in her charge to the jury: the defendant would be predisposed if he’d already committed a crime of this type, or if he’d made plans to commit such a crime, or if he’d promptly responded to the opportunity proposed by the informant.
Much of the evidence for predisposition came from the transcripts of the recordings made by the DEA’s informant. In those conversations, the defendant repeatedly claimed that he wasn’t new to the drug business. He talked about other customers he’d sold drugs to. He advised his barber on the tactics of drug selling — where to hide the pills, when to schedule their meetings, how to communicate using codes and multiple phones. Most damning of all, the defendant seemed to be leading the conversations, clearly in charge. He showed no reluctance to sell fentanyl. On the contrary, he kept urging his barber to buy more. During three transactions occurring over a two-week period, the defendant sold a total of 800 fentanyl pills to the informant, and DEA agents seized an additional 1,100 pills from the defendant’s car when he was arrested during the course of the fourth transaction.
When the defendant appeared on the witness stand, though, he claimed that his recorded statements were lies. He testified that he was simply boasting to his barber, trying to bullshit and impress him. In truth, he said, he had no prior experience in the drug business.
This claim didn’t seem credible to me. But the clincher, in my opinion, was the sheer size of the defendant’s drug sales to his barber. In their very first transaction, the defendant sold 200 fentanyl pills for $3,000 and also provided his barber with a free sample of heroin. The defendant testified that his supplier was a man identified only by a first name, Kelvin, whom he’d met at a disco several months after his barber broached the idea of doing a drug deal. So the defendant was asking the jury to believe that a wholesale fentanyl supplier would sell 200 pills, apparently on credit, to a first-time customer he’d met at a disco. And kick in a free heroin sample as well. For me, this was the straw that broke the camel’s back. Yes, I could still doubt that the defendant had some prior experience in drug dealing, but it wouldn’t be a reasonable doubt. Any reasonable person would’ve concluded, based on the evidence, that the defendant had a predisposition to sell drugs. Therefore, he couldn’t have been entrapped by the DEA informant.
Eventually, all twelve jurors came to the same conclusion. Each of us signed the verdict form, guilty on all four counts (one for each drug sale). Then we filed into Courtroom 110, and our foreperson announced the verdicts. The defendant, sitting next to his lawyers at the defense table, buried his face in his hands. Later, he was remanded to federal custody.
So what lessons for legal thrillers can be drawn from this experience? Here are five:
1) Not all criminals are criminal masterminds. The transcripts of the informant’s recordings revealed that on at least one occasion the defendant caught the informant in a lie. (The informant said in a phone call that he hadn’t driven to their rendezvous point yet, but the defendant had arrived early and seen the informant’s car.) A truly savvy criminal would’ve scented danger and abandoned the whole enterprise, but the defendant chose to believe it was a misunderstanding and went ahead with the drug deal. Maybe he just couldn’t imagine that his barber would betray him? Perhaps the real lesson here is, “Don’t put too much trust in your barber.” He usually knows more about you than you know about him.
2) A jury must make its decision based on the available evidence. In every trial there are missing pieces. In our trial we wanted to know whether it was the defendant or the informant who’d initiated the drug deal, and when the first conversation about it had taken place. But because no recordings were made before the deal was in motion, the only evidence available to us was the testimony of the defendant and the informant, and neither man seemed reliable. The prosecution introduced the defendant’s phone records from the months before the first drug sale, and several lengthy calls to the informant were listed in the records, but that evidence was far from conclusive. We had no idea what they were talking about during those calls, so the records couldn’t answer our questions. It was frustrating, but we couldn’t waste our time lamenting that we didn’t know everything. We had to make a judgment based on what we DID know.
3) Drug weights can be misleading. To prove that the pills sold by the defendant contained a controlled substance, the government’s lab technicians crushed some of the pills and tested for the presence of fentanyl and other chemicals. (The trial testimony revealed that the defendant actually thought he was selling oxycodone, a different kind of opioid. That was also the DEA’s assumption until the lab results showed that the pills contained fentanyl. Legally, though, it made no difference; both oxycodone and fentanyl are controlled substances, and their use is regulated by the same federal laws.) The lab tests didn’t reveal the purity of the pills, but that’s a moot point for fentanyl, because the drug is so potent. Just a few milligrams can be fatal. The 1,900 pills that the DEA obtained from the defendant weighed nearly 200 grams in all, but the weight of the fentanyl in the pills was presumably much lower. Nevertheless, it’s the overall weight of the pills that the judge will consider when she determines the sentence for the crime.
4) The quality of federal judicial proceedings (at least in New York’s Southern District) is high. I was impressed by the competence and professionalism of everyone involved in the trial. The prosecutors did a good job of presenting their evidence, and the federal defenders (lawyers employed by the government and appointed to represent defendants who can’t afford to hire counsel) did the best job they could with the case they had. Both the defendant and the informant were Spanish speakers, so the defense and prosecution used teams of amazingly skilled interpreters to translate the testimony. Judge Failla was fair and courteous, but also tough when she needed to be; she kept things moving and brooked no nonsense. After we delivered our verdict, she visited the jury room to thank us and answer any questions we had. I can easily imagine her being promoted someday to the U.S. Court of Appeals for the Second Circuit, which is also based in the Foley Square courthouse and has served as a steppingstone to the Supreme Court. (That was the path taken by Justice Sonia Sotomayor.)
5) Justice is heavy. Legally, I believe we did the right thing. We reached a verdict based on the definition of entrapment. This definition is narrow and a bit ambiguous — what constitutes a “prompt response” to an informant’s proposal? — but if entrapment were defined more broadly, how could the government combat the sale of deadly drugs? Fentanyl and other opioids are devastating this country, and sometimes the only way to nab the dealers is to use informants to deceive them. Just think of all the overdoses, all the opioid addicts collapsing on the street and being rushed to emergency rooms. But as I sat in the jury box of Courtroom 110 and watched the defendant shake with sobs, I thought of another trial that had taken place in that very same courtroom 68 years ago. On March 29th, 1951, Julius and Ethel Rosenberg were convicted of espionage in that room. The jurors found the Rosenbergs guilty of conspiring to deliver atom-bomb secrets to Russian agents, hastening the Soviet Union’s development of its own nuclear bomb. (Historians still debate whether this was true, particularly the usefulness of whatever information the Rosenbergs may have handed over to the Russians.) Judge Irving Kaufman commended the verdict: “The thought that citizens of our country would lend themselves to the destruction of their own country by the most destructive weapon known to man is so shocking that I can’t find words to describe this loathsome offense.” A week later he sentenced the Rosenbergs to die in the electric chair.
In that case, the judge and jury also believed they’d done the right thing.
In other legal news, Attorney General William Barr just announced that he will release the Mueller report — probably with lots of redactions — by mid-April. But if you want to get a sneak peek at the shenanigans of a loose-cannon president, check out my latest novel, THE COMING STORM, now available on Amazon for the low, low price of nine bucks!