Interesting five days, now concluded (although, now I see I have gone on at such length, probably not nearly so interesting as to justify this rambling narrative). The defendant was charged with "battery upon a police officer," the alleged battery having occurred when a uniformed Oakland policeman pulled up beside the 46 year-old subject in a rough part of town (my fair city, notwithstanding its evil reputation, actually consists of about a dozen to twenty distinct districts, most of which are not characterized by crack houses and drive-by shootings and several of which are fashionable yuppie sanctuaries; this particular neighborhood, though, is one of the grim ones) and, acting on the belief that the pedestrian had purchased cocaine ten minutes earlier and now had it secreted in his mouth, confronted the individual and attempted to retrieve the evidence while its plastic packaging was still sticky with mere saliva rather than with the other thing, and therein hangs our tale that distant late afternoon last winter.

The account presented to the jury was conceptually divisible into two components. In the first, an OPD officer ("K") in an unmarked van observed a drug deal on a north-south street, and reported this by radio to an unmarked police car, manned by another officer ("G") nearby, G being at this point parked around the corner from K one short block north and a considerably longer block east. K described both the dealer, "D" and the purchaser, "X" as they proceeded north from him and completed their transaction, X thereafter turning east on "Maple Street" and passing out of K's sight.

G takes off westbound from his parked position at the other end of Maple Street and tries to find X, and very near the western end of the block catches sight of an individual largely matching K's description of X, heading east along the south side of the street. G at this point radios his own description of X to the next officer, "M" (the uniformed guy designated to make the arrest at some distance from the surveillance area, so as not to tip the retailers that they're under observation) and continues past the presumed X and makes a U-turn at the end of the block in that same north-south street on which K first saw the deal go down.

G, who has briefly lost sight of X while reversing direction at the intersection, is now a bit surprised (we the jury intimate) not to see him on his right at the western end of the block, and proceeds east to the end of the block where—thank goodness!—he reacquires X heading north on "Elm Street." Or does he?

K's described a black man dressed in (I'm going to modify a few details throughout, but the discrepancies will be analogous) a black baseball cap, black leather jacket, light blue jeans and white tennis shoes with a distinctive logo. In his first ID, at the western end of the block before his U-turn, G describes a black man dressed in a "black beanie," black or brown leather jacket, light green jeans, carrying a walking stick, the shoes not being described. This is the first description heard by Officer M.

When G reacquires the presumed buyer at the eastern end of the block, he radios to M a new description: the suspect has a "black beanie," black or brown leather jacket, *red* jeans and a walking stick. In his testimony G avers that while he said "red" on the dispatcher's tape he had actually meant to say "dark green."

G and M are now within sight of one another and of the presumed X, (henceforth "P") and G points to D, indicating to M that this is X.

M follows X/P a couple of blocks north on Elm Street until he judged that this is now a sufficient distance from the surveillance area to make the collar. M now pulls to the curb, stops, exits the car and, by his account, says to P "Can I talk to you for a second?" P, again by M's account, turns, says nothing. M commands P to open his mouth. P "clenches his jaw," turns his back on M and continues north on Elm. M springs forward and places his hands on P's cheeks and chin, attempting to prevent P from "swallowing evidence." M is about six feet tall, 190 pounds, about 27, very fit and muscular. P is about 5' 7", 150 lb, 46, thin. At this point, by M's testimony and the prosecutor's account, P first "pushes" M and then, with his back to M, viciously "batters" M with his elbows. P is quickly subdued and trundled into the police car, and from this point, oddly, the entire issue of possible drug ingestion/possession seems to drop from the OPD consciousness and we are now principally concerned to arrest and punish this vicious police batterer. I might mention that P's trousers in the event were not light blue, or light green, and certainly not red, but rather dark blue, and that his shoes were neither white, nor tennis shoes, nor bearing a logo of any kind. You can see where I'm going with this.

The case, as I say, seemed to divide into these two components: first the original offense observed by Officer K (whose testimony we unanimously found unobjectionable, professional and persuasive), resulting in a description relayed to Officer G (who, in his testimony, confused east with west, left with right, even with odd and, apparently, red with green—did I say "red" on the tape? Well, I meant to say "dark green." That's absolutely what I saw. I don't know why I said red), and the subsequent surveillance of X/P, and second, the encounter of P and M, which lasted about a minute and ended with P handcuffed in the back of a police car.

None of us found G's testimony convincing. We did not think him a liar, but we thought he was very young, and not as yet very good at his work. We thought it likely that he lost sight of the real X when that worthy crossed the street or ambled between houses while G was making his U-turn in the intersection, and we surmised that G's state of mind was approximately "Oh shit, I've fumbled the surveillance"; that he drove to the end of the Maple Street where he caught sight of P (who had just left the home of a relative at the eastern end of Maple Street) heading north on Elm Street, and was sufficiently satisfied by superficial points of resemblance (black man, leather jacket, headwear, walking stick) and relieved to have reacquired the subject, handed P off to Officer M, who followed him for two blocks to their confrontation.

M in his testimony struck most of us as a bit of a hot-dogger—white, probably not yet 30, 6' 1", 200 pounds, shaved head, extrememly fit and muscular, in affect rather intense—but not over the top. We came to believe that he was already ramped up when he approached P, but no one felt that he had any significant reason to believe that P had been misidentified as X.

As we began our deliberation, it took little time for all of us to agree that it was pretty apparent that the police, specifically the hapless Officer G, had blown the "chain of custody" in their surveillance of X. P, we concluded, was not X, and his confrontation with Officer M, who believed himself to be dealing with a man who had purchased a rock of crack ten minutes earlier, almost certainly came as a complete surprise to him. We were also conscious, however, that even though both sides in the case spent more time on this lead-up than on the alleged battery itself, we were not being asked to decide whether P was X (although the prosecution insisted that he was) but rather whether his behavior in the exchange with M constituted the criminal conduct he was charged with. That is, we might conceivably have concluded that P had been properly fingered by G, but that his conduct during his arrest was blameless, or conversely that P was a law-abiding citizen minding his own business when he was mistakenly approached by the police, but that his conduct thereafter crossed the line into criminal. In the event, as I said, nobody doubted that the police had jumped the wrong man, but a number of jurors argued that this was P's tough luck, and that the moment he first resisted M's attempt to physically control him P crossed the line into "battery," which was certainly a plausible reading of the law as it was defined for us (one apparently needs do very little to cross that line: any physical contact in which the civilian is anything but utterly passive can be so construed if the officer doesn't like it).

I'll spare you the six hours of back-and-forth, and tell you that we finally voted to acquit, having broken along the way into three or four technical factions, so that there was no unanimity as to the "why" of the acquittal except insofar as we all agreed that for the prosecution to prevail, all three of conditions 1, 2 and 3 would have to obtain. We had people who were satisfied that one, two or none of the conditions had been met, but no one thought that all three had. I was particularly intrigued by the issue of whether P had been "lawfully" arrested. We were instructed that for the arrest (and apparently an "arrest" is deemed to have occurred at the first moment an officer lays hands upon one, or upon—I wish I could remember the exact wording—a reasonable perception that one is not at liberty to withdraw from the officer's presence) to be lawful, the officer had to be in possession certain facts known or apparent to him. M collared P in good faith, relying on G's identification of P as X. M believed that P was X. But was this a "fact"? In fact, P was not X. I might be informed, let us say, while chatting up Cardinal Levada, currently the Prefect for the Congregation of the Doctrine of the Faith (we used to get together Sundays to do tequila shooters and watch the Niners on TV back when he was Archbishop of San Francisco), that his predecessor in that office, now His Holiness Pope Benedict XVI, was actually raised as a devout Mormon, only converting to Catholicism in his forties. I might believe Archbishop Levada. I might rely on this assurance from the head of the Inquisition, I might even act on this assurance (although really, Bill Levada always did have a pretty twisted sense of humor), but have I ever been in possession of the "fact" of the Pontiff's former affiliation with the LDS? Such a "fact" does not exist. This will sound like hair-splitting, but of course, both sides were inviting us to do a lot of that.

P's attorney (a public defender) painted his client as a solid citizen, a dreamy urban sage and philosopher, more than once referring to him as "this gentle old man." P was 46 at the time of his arrest; I'm guessing that the attorney is 26 at the outside. As I listened to his testimony P struck me as a proud and rather prickly character. M and another witness described P as using foul language and threatening legal action after his arrest. P denied this; none of us believed him. Even had we rejected P's entire account of the altercation and accepted unreservedly M's and the prosecutor's version, though, P's conduct would still have seemed like pretty small beans, and I think all the jurors left the courtroom wondering the same thing: Why on earth did this come to trial in the first place? If every scuffle with an Oakland policeman ended with a jury trial, surely the courts in Alameda County would grind to a halt. If only the most egregious cases of assault upon an officer were brought to trial, and if P's conduct was representative of that class, then Oakland would appear to be blessed with an uncommonly docile lumpenproletariat. As I said to the Assistant D.A. following the trial, it seemed to me as though his masters had asked him to make bricks with very little straw (Lina points out that the young man, also in his twenties, was likely unfamiliar with the idiom, and that I must accordingly have sounded to him like some drooling dotard mumbling inanities). They must have known on the prosecution side how bad G's testimony would sound, and much as he attempted, as an advocate, to persuade us that P was the elusive X, I'm certain that the prosecutor didn't believe it himself. I'm left thinking that there must be some concealed layer of motivation, some internal politics in the police department or the D.A.'s office, to account for the entire undertaking. In any event, I'm grateful not to have been party to a guilty verdict that would have been, in a broader context than as jurors we were permitted to consider, an injustice to the prickly Mr. P.

cordially,

[edit: typo]