Coauthored by Billy Bussell Thompson
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In memoriam José Galdino: my father.
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ACKNOWLEDGMENTS
I share with the reader my utmost sincere gratitude to Billy Bussell Thompson, PhD in Linguistics, Professor Emeritus at Hofstra University, who has been a lifelong mentor, editor, and closest friend. I also express my deep appreciation for the nuance of sensitive and perceptive editing contributed by both, my perspicacious sister Bonnie Morín, playwright, producer and director of the Madrid Method Workshop in Spain (https://www.metodomadrid.es/), and by her daughter, the talented niece Natalia Velarde (@nix.conbotas), graphic artist and author. I also give thanks for a much awaited reunion with her other daughter, the unequaled niece Camila Velarde, Lic. in philosophy and choreography. Last, I thank my dear husband David Lowenberger, whom I consider to be the most influential in every aspect of my life. Their perception and wisdom served as inspiration and guide for the realization of this short story.
Ricardo F. Morin T., 21 February 2021
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PREFACE:
Choking On One’s Own Saliva
My father once said how dismal his life would be were his identity lost to the orthodoxy of religion. It was no coincidence that, in reaction to the pieties of five generations, my father was to become a criminologist. For most of his life, he thought that the traditional stories about complementary retribution, binary belief in reward and condemnation, were fantasies, harmless until they became radicalized as replacements for inquiry. As a young man he based his own doctoral dissertation on such principles. Unfortunately, those convictions he deemed delusional were ultimately his own at the end of his life.
I think that, except for the instigation of violence through the search for meaning and its attachment to fiction, whether the violence arises from retribution or self-preservation, a person has no reason to become fearful or destructive. The only remedy to violence is knowing the difference between fantasy and reality.
As I reflected on my own father’s contradictions, I remembered what he had told me when I was a child, that lying was a survival skill. It enabled a person to hide himself in secrecy, not necessarily out of moral incompetence. It arose either from charity or from the fear of being judged. For him lying was part of becoming a competent adult. It was a way to hide imperfections and vulnerabilities. However, if sincerity or honesty were to threaten my father’s survival, it would be because he wanted rather to invent a story instead of looking into his ignorance and diminished understanding of his own importance. Was it natural for him to hide behind lies, or was it his own hubris? Perhaps he was choking on his own saliva during his entire life. He suffered from the delusion that he could avoid truth, or that he could control not facing up to it. Was this a fear of loosing control? Was that a reason why he could not find self-understanding? The mystery was centered not in his self-questioning, but in his fictionalizing his own life, no differently from our forebears.
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Gangs of West Harlem
1
The Process
For the third time I was serving on jury duty. As on previous occasions, I introduced myself as a visual artist during the voir dire. This time the defense lawyer inquired if I was a portraitist. I reasoned to myself the question was intended to probe the degrees of observation a painter aspired to. I replied that my interest as a visual artist was in the conceptual processes of abstract art, no different from that of a portraitist or any other representational painter, seeking to observe and interpret the essence of a subject. What I chose to represent through abstraction or conception was just as concrete as that of a sitter for a portraitist.
2
The Rules
The trial concerned the murder of a fourteen-year-old boy, and I was selected juror number 12. Previously, I served on civil cases. In civil cases, the preponderance of the evidence is the determining principle. In a criminal trial, the ruling principle is the measure of reasonable doubt. The rules were cautionary and aimed to avoid bias on the part of the jury. In their deliberations jurors were to concentrate on the evidence presented and not on background. Also jurors were not to share information with other people outside of their own forum. I did not know how my participation in a murder trial would affect me. The day after the trial began, juror number 11 was replaced by an alternate.
Testimony lasted 17 days. During that time our electronic devices, cell phones, laptops, and tablets were allowed. On the 18th day, when jury’s deliberations started, these devices were taken away from us. Before this, we had been permitted to speak on matters not related to the trial. We were a diverse group and had very little in common. During court hearings, we had been allowed to take notes while we sat in the jury box. After the days’ proceedings, our note pads were left on our respective seats. When deliberations began, we could take our pads back and forth between the jury box and the jury room. Only then, were we able to study our notes and refer to our observations. Only then, could we begin to talk about the case with each other.
3
The Jurors
The foreman of the jury was an office manager, who felt comfortable in his role as moderator. His communication skills were excellent; even when he disagreed, his manner never expressed condescension. Some jurors were reticent and never voiced a judgment one way or the other. The youngest member of the jury did not find the witness of the crime unreliable. Other jurors were open minded. A teacher remained calm throughout; she listened to others before expressing her own views. Another juror was impatient about the length of the trial. She complained that she had a toddler to care for at home. Aside from myself, there were two other retirees, one of whom was a corporate lawyer, who reminded us of the distinction between civil and criminal cases. Reasonable doubt existed in varying degrees for every member of the jury, save for the youngest one.
4
The Defendant: In dubio pro reo
The defense lawyer had her client plead the fifth amendment. The accused gazed solicitously, with a kind of clawing eagerness. He looked seven years younger in his freshly starched white shirt and tie. His hair was a cropped Afro, and he had across his upper lip a straight mustache. His dress was conceived obviously to attest to his wholesomeness. Since the time of the murder, he has been a detainee at Rikers Island. Sitting barely 30 feet away from the jury, the accused bore a grin across his face whenever he looked towards the jurors. Some members of the jury interpreted his countenance as gloating. Others saw his expression as self pity or abjection, even an attempt at winning us over. His grin, a kind of twisted grimace, was unflappable and even disturbing to us. By the end, however, we dismissed our apprehensions. It was impossible to know whether the accused was remorseful or just trying to beguile us. More important, was the question of consistency. If doubt was to play a part in the case, it had to arise from the evidence. Key was whether the accused was a lone assailant or whether there might have been others involved. Certainty had to come from the assessment of facts, and not be based on appearances.
5
The Prosecution
The prosecution charged the defendant with “first degree” murder. This implied premeditation with malice aforethought. The prosecution added two other charges: murder in the “second degree,” suggesting lack of premeditation. The third charge was for felony murder: death caused during the commission of a felony using an illegal weapon and with extreme indifference to human life. Rendering judgment on these charges rested on intent. Each member of the jury would have to reach an approximation of the truth, and no other reasonable explanation could explain the evidence presented at the trial. The verdict, of course, would have to be unanimous. Proof of the direct involvement of the accused was paramount. The evidence had to show the accused had committed the crime. Was the victim’s death the result of self-defense or was it deliberate? The question before the jury was whether there were circumstances outside the control of the accused. How did his instincts and fears come into play with his own actions. Could the jurors differentiate all of these aspects?
6
Testimonies
I
July’s weather was overbearingly hot. The air conditioning in the jury room was old and as inefficient as it was in the court room; the jury room was even more stifling than the courtroom, particularly between the long intervals of each day’s proceedings. The room was barely large enough for the long table and its 12 uncomfortable chairs. In this tight space it was almost impossible for the jurors to walk around, to go to the water-fountain, or even to the single restroom available. Lunch breaks were much appreciated. On the few days when there was a breeze, we could open the windows, but had to put up with street noise. In the court room, no such liberties were permitted
II
By the third week of the proceedings, the judge began standing with his arms folded against his hips. With a baffled face, he would turn around and stand behind his chair, his black robe half unfurled, and his necktie loosened. At times, he assumed what seemed to be a meditative expression with both arms folded over the back of the chair. Other times, he supported himself with one of his elbows over the back of the chair. One of his hands was placed against his chin, giving him a certain look of abandon. For me, this informality broke up the monotony of the case, as if it were helping him stay awake, and mollified the stultifying heat.
III
The aspects of this case had been under investigation for seven years. We, the jurors, were astonished at the lack of cohesion to the accusations. The statements by the witnesses in no way corresponded to the arguments made by the prosecutor. In fact, the prosecution’s case was stale. One wondered if there was any justification for this trial. The only merit to the case seemingly was using the authority of a jury trial to render a verdict, either for exoneration or conviction.
IV
According to testimony given by the police, the crime resulted from two rival gangs. The gang members’ ages ranged from 12 to 40. The defendant’s lawyer provided their pictures to the jury. The pictures showed them in expensive clothing. Both groups seemed to be showing off, as if they were the source of the neighborhood’s pride. Each group had its own hand signs as mottoes. According to the police, on the night of the murder the two gangs fought over their territory for the peddling of drugs. The defendant became the prime suspect two years into the investigation. According to one of the detectives, the defendant sought to intimidate younger members of the opposing gang, as a means of establishing his own authority over them. The defendant’s motive was said to be an attempt to sooth his own anger for being “dissed.” The jury found these to be speculative. For us the only facts credible were those of the struggle between them.
V
The first eyewitness, aged 13 years at the time of the murder, was the centerpin of the prosecution’s defense. He had been a close friend of the victim, and his proximity to the deed made him valuable. During the course of several days of testimony, two officers escorted him in dressed in an orange jumpsuit, both hands and ankles shackled. They removed only his handcuffs when he sat down on the stand. From the defendant’s attorney, we learned that he had been in custody for two years on a different murder charge. The defendant’s attorney asked him: Are you here today in exchange for lenience for the indictment you face? He thrust his arms and shoulders forward. His answers seemed evasive while the prosecution objected. The question was withdrawn, but the jury would not forget it. His hand partly covered his face, especially his eyes and nose. His head shifted from side to side. He pointed to the defendant, rubbed his chin, and accused him of being the killer. Yet, his deportment was indiscernible and seemed manipulative. Obviously he had not seen from where the bullet had come. His allegations sounded implausible, as if they had been rehearsed. He had an air of entitlement, exuding hatred. During the prosecution’s examination, he revealed his conversion to Islam, and stated he had become a better person by the teachings of the Prophet. For the jury, however, his demeanor was that of an unrepentant malefactor. His lack of doubt hinted at a life of crime, without a sense of any morality.
VI
The prosecutor’s second witness spoke softly, yet his testimony seemed tentative. By his own account, he had been at the edges of the riotous horde. A circle had formed around the hooded individual and the victim. When questioned by the defense, he hesitated before admitting having seeing another armed buddy. But at the end, he relented. He recalled that other gang members had shot into the sky. He acknowledged that other guns had been used, thus accounting for multiple shells found by the police. The bullet, however, that pierced the victim’s heart was a mystery. The jury was at a loss as to what had gone on. Was it retaliation? Was it the shooter egging on accomplices? No answer was forthcoming, neither from this witness nor from the previous one.
VII
Even though, the defense attorney tried to unravel the credibility of the prosecutor’s two eyewitnesses, she tripped over her own words. Not unnoticed was her assertion that the gunman might have carried a gun inside the pocket of his hoodie. Since no one had yet claimed to having seen him draw a gun, her attention to this matter seemed out of place. Was she trying to negate the hooded man’s innocence, while at the same time admitting to her client’s involvement? Jurors never understood her purpose, since the identity of the person in the hood had never been made clear. For the defendant her digression was inconsequential. But not for the jury because it augmented our doubts. Nevertheless, the defense attorney rebutted the evidence gathered by the police.
VIII
On the night of the murder, a pedestrian called the neighborhood foot patrol’s attention to a commotion on the street. The patrol did nothing until the police arrived in their cars and found the body of some one killed. The crowd around the victim had already dispersed and none of the neighbors willingly spoke of what they had seen. The jury was dismayed that the arrest warrant was issued two years after the event. The defense lawyer emphasized that, in the course of those two years, any witnesses’ recollection surely must have faded. She argued: “… just to be pointing a finger at an alleged culprit, out of a desire to seek closure, should not be deemed evidentiary in and of itself.”
7
The Evidence
We asked to see the video evidence before and after the shooting. Witnesses had stated that the defendant on the night of the murder had gone to a tenement looking for a gun, which was shared by all members of his gang. There were two cameras, both of which had restrictive angles of vision. The video was grainy: the product of low resolution security cameras. There was no sound and the imagery was choppy. The lobby camera showed someone descending the stairs to exit, wearing a baseball cap underneath a hoodie. Only his lips and chin were visible. The jury’s dilemma was how to identify the person. The woman with the child at home emphasized “…those features could have been any member of either gang.”
The crime took placed at midnight. There was no traffic and the street was poorly lighted. For a second time, we examined the tape from the outside camera. We concentrated on the footage just before the shooting. It was murky and it showed the person in the hoodie stepping outside the building. The victim’s back was visible and his friend was behind him. There were several flashes of gun fire with one of them coming from next to the victim. A person in the hoodie faced the camera wielding a gun.
Ballistic evidence showed that the trajectory of the bullet came from a short distance before it entered the body of the victim. Maybe the shot came from the position of the hooded man but this was only a guess. More importantly, no guns were ever recovered and we still did not know who the gunman was. In summary, the testimonies, the analysis, and the written accounts were all useless to us.
8
The Community
Jurors were in agreement that the accounts given by the two gangs and the community were not to be trusted. The two gangs lived in two adjacent blocks. Drug infested, the community had become their victim. Solidarity showed itself as hostility. Assault not only on the street but at home was rife. Mothers, brothers and, sisters commonly were attacked. The death rate was high, which in and of itself was evidence that this community was sowing the seeds of its own destruction. Teenagers commonly stole and murdered. Only the rare adolescent was exempt. No social program could help. We, as jurors, were we only agents of retribution?
9
Blindness
From the first days of deliberation, the jurors were uncertain if the accused had taken any part at all. On our fourth day, the young woman who had been most adamant about the guilt of the accused began to waver. Most jurors still thought him to be innocent, but four remained unconvinced. The more jurors accepted their own limitations, the more difficult it became to form an opinion. The phrase blind justice turned piercingly poignant.
10
Unanimity
The majority argued with the four hold outs. Tensions rose with the thermometer. The heat of the midday, the humidity, and the noise from the street became increasingly unbearable. With the windows closed, we turned on the anemic air conditioner and became more fearful than ever of not measuring up to the task. Our disagreements put us on edge and were nerve racking. Slowly we moved towards common ground. One by one, concessions were made. By the time of the third vote, the foreman hesitantly voted against conviction. There were still three jurors holding strongly for conviction. We gave ourselves a minute of silence before voting again. The decision was unanimous innocent. Surprisingly, had we presented a wrongful conviction, or had we derailed the case?
11
Announcing the Verdict
Jurors summoned the guard and handed him a yellow manila envelope with the verdict. After we had returned to the court room, the judge polled us individually. Indelibly imprinted on us was the murdered child’s mother’s face. From the start she had sat alone on the back left corner of the court room. Her sorrow contrasted sharply with the defendant’s family. I felt wary of these families’ reactions. I was deflated, even felt inadequate, indeed insignificant. Knowledge here was slippery.
An uproar reigned in the courtroom. The cries of the murdered child’s mother collided with the joy of the defendant’s family. Repeatedly, the judge admonished the room to be silent. He closed by thanking the jurors for their service, who were in a state of shock. Were we right or were we wrong?, I asked myself.
12
The Randomness of Truth
Chance dominated the jury’s participation. I recalled with fear my father’s imperative about hiding behind fiction as an instrument of self reliance.
The jury broke up. The judge stared at us with a smile as we climbed down to the exit. We walked to where we had deliberated and collected our belongings. We moved to an elevator at the opposite end of the court house. Below, the family of the acquitted man awaited us and, as we approached, they shouted their deafening thanks. The corruption was now complete.
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Epilogue
Ended the theater of misalliance, jurors, the lawyers, and witnesses became actors in the absurd. Our verdict was uncertain: Lost of life and life was foremost. Society seems predetermined: Advantage and disadvantage are in confrontation. What a role do abandonment and darkness play in the human condition?, I pondered. It just seems as if indifference inflicts itself onto destiny.
Ricardo F Morín T and Billy Bussell Thompson
Observations On Perception 