I obtained late in the day on April 20, 2017 a defense verdict in a Philadelphia jury trial. During two decades of trying cases, I have had several trials scheduled to start on Easter Monday, but none actually went forward. This time things were different. My client faced three charges based on illegal possession of a handgun, and a mandatory minimum of 10 years incarceration had he been convicted. At trial, we had to deal not only with the loaded 9 mm Taurus that police claimed to have recovered from a residential walkway near where my client was arrested, but with the equally fearsome weapon obtained from a fellow member of my client’s motorcycle club, who was arrested at the same time.
The factual setting of the case was a motorcycle club party gone bad, with two fatalities that the District Attorney mentioned at every opportunity. However, in the absence of evidence that my client used, held or even touched the weapon in question, the Commonwealth relied on a theory of constructive possession, that my client must have possessed the gun since police recovered it from a darkened walkway, about 6 inches behind my client, after police directed him to sit down and await backup.
The Commonwealth’s brash confidence began to waiver after my client testified. He did very well, explaining what he did that night and that he never possessed a handgun, while avoiding the traps that generally snare most defendants who testify on their behalf. He did not argue with the prosecutor and did not insist on a version of events that portrayed him in the best possible light. Sure, it was dark that evening, but he didn’t deny that streetlights were in the area, and he didn’t deny dropping his leather club vest when the police first arrived on the scene. Far from an attempt to “hide the evidence,” my client explained that he had no choice to drop it, when the officer asked him to show his hands.
The jury agreed that given the hundreds of people who walked near the area to exit the party gone bad, the gun could have come from anywhere, and that the generally dark conditions of the area after midnight (despite a few streetlights in the area) could have hidden the weapon from the officer’s sight at the point he told my client to sit down on the walkway. During deliberations, the jury asked if the Commonwealth had traced the weapon or conducted gunshot residue (GSR) testing to support the argument that my client had not only possessed, but actually used the gun minutes before he was arrested.
In the absence of any testing, our judge instructed the jury that they would need to rely on their collective recall of the evidence. Understanding that this actually meant that no such tests existed, the jury returned a defense verdict on all charges about 30 minutes later. Speaking with a juror post-verdict confirmed my initial assessment of the case – that there were too many gaps in the proof to connect the gun to my client. It also confirmed that the jury had a deep collective knowledge of what issues matter in a gun case. Not only were they surprised by the lack of GSR testing, they wanted to know why the Commonwealth had not traced the gun to identify the legitimate owner, and could not rule out that my client’s co-defendant, who sat next to him on the steps, had not been the one who placed the gun on the walkway behind my client.
After collecting my file and reorganizing it, I slung a heavy trial bag over my shoulder and walked north to where I was parked. It was a chilly spring evening, green leaves emerging under a threatening dark sky. My client returned to his job as a chef for a prestigious Center City caterer, and I returned to the paperwork and unread emails waiting in the office. I have heard that despite the difficulty of their work, emergency first responders learn to love it, due to the freedom from routine and unread text messages. Trial work is similar, and after 17 jury trials, I can truly say that I look forward to the next one.