Thursday, May 3, 2012

We Be The Juror: Massachusetts v. Cowans

I offer the case of Massachusetts v. Cowans for your consideration. I have shamelessly stolen the summary from an adverse appellate decision. Please read the summary carefully. It will be followed by a single-question, binary-answer pop quiz.
A jury convicted the defendant, Stephan Cowans, of armed assault with intent to murder, home invasion, assault and battery by means of a dangerous weapon, armed robbery, assault and battery on a police officer, assault by means of a dangerous weapon, and unlawful possession of a firearm. The defendant asks us to hold that witnesses may not testify on direct examination to their degree of certainty in an identification. ... 
The jury could have found the following facts. After pursuing a male, later identified as the defendant, on foot, Boston police Officer Gregory Gallagher caught up to him in a backyard in the Jamaica Plain section of Boston. The defendant grabbed Gallagher and the two struggled until the defendant managed to remove Gallagher's gun from its holster. As Gallagher scaled a fence, the defendant shot him twice. Gallagher survived and heard additional shots. The defendant had shot at a neighborhood resident, Benjamin Pitre, but missed. 
At the same time, while in the kitchen of her home, Bonnie Lacy and her daughter heard gun shots. Lacy's son came downstairs and opened the side door of the house. The defendant, whom Bonnie Lacy had never seen before, was standing in the doorway with a gun. She testified that the man "just came on in ... [h]e just walked, just like normal walking, with a gun." The gun's barrel was pointing up. The defendant appeared frightened and nervous. Lacy was very frightened. 
Lacy asked him what the problem was and he replied, "[T]hose punks are after me." She asked who and he told her "those white policemen." Lacy asked the defendant to put down the gun. He complied. He kneeled on the floor and took off his sweatshirt. The defendant used his sweatshirt to wipe the gun and rested the gun on top of the sweatshirt on the floor. 
The defendant asked for some water and Lacy provided him with a glass mug of water. He drank the water and placed the mug on her kitchen table. Lacy went to the door and asked him if he was ready to go. The defendant told her he did not want to go to jail. Lacy told him that if he had done anything wrong he should just go and turn himself in. Lacy opened the door and the defendant went out.
The defendant left behind the gun and the sweatshirt. Lacy testified that after the defendant left, she and her children "hugged each other real, real tight; and we praised God that we didn't get killed." Lacy testified that the defendant never pointed the gun at her or her children and he never threatened them with the gun. 
Tennille Davis, a friend of the defendant's, testified that she saw him before and after the shooting. The defendant repeatedly suggested to Davis that he had been with her the entire day of the shooting. She testified that she corrected him and said she had seen him early that day and then again after the officer was shot, but that she had not been with him the entire day. 
Several weeks later, Gallagher selected the defendant's photograph from an array and then identified the defendant in a lineup. At trial, Gallagher identified the defendant as the man who shot him. Pitre viewed a photographic array, but did not identify anyone, even though the defendant's photograph was in the array. Pitre subsequently selected the defendant from a lineup and identified him at trial. Bonnie Lacy viewed a photographic array and the lineup but did not positively identify anyone. A fingerprint left on the glass mug was matched to the defendant. 
The theory of the defense was misidentification. A woman in the neighborhood had seen a black male being chased by a police officer, but she testified that it was not the defendant. Defense counsel also introduced evidence that the Lacy children had not selected anyone from the photographic array and challenged the eyewitness and fingerprint evidence.
Here's the pop quiz.

I'll cast the first vote. I vote Guilty. If you dare vote Not Guilty, I ask that you explain yourself in the comments.

We have a verdict.


Anonymous said...

I voted "not guilty", although in a "real" trial I might have voted guilty...after reading the excerpt several times, though, I have some questions/concerns.

First off, there aren't any good IDs. Bonnie Lacy, the kids (if they were old enough to make a good ID), and Pitre couldn't/didn't ID Cowens. Gallagher didn't ID Cowens until several weeks after the event (this is unconvincing without an explanation as to why the ID didn't happen significantly earlier).

Second, there's "missing" evidence. No IDs. No DNA (either from water mug or from sweatshirt). No attempt to show that the sweatshirt was Cowen's. Only a single fingerprint (Or at least I'm assuming there was only the one, since the singular is used throughout the excerpt...)

Probably the bit with the gun and the sweatshirt was written to explain a lack of fingerprints on the gun. But how did Cowens fold the sweatshirt and place the gun on top without touching the gun again? And why was there only one fingerprint on the glass mug? Presumably he picked up the mug with more than one finger?

Also, it seems like someone who is careful enough to wipe down the gun would probably be careful enough not to leave his sweatshirt in the house or to leave a glass mug -- with fingerprint(s) on it -- sitting on the kitchen table! (There might be a perfectly good explanation for this stuff, but if there is, I'd want to know it.)

tsj said...

Regarding the DNA, this trial occurred before DNA tests were generally used as evidence. I didn't mention that in the summary. Sorry for that.

Regarding the IDs, both Officer Gallagher and neighbor Pitre did identify Cowans. Officer Gallagher was a particularly good eyewitness. He was a trained observer and he confronted Cowans face-to-face. Gallagher testified at trial that he was absolutely certain that Cowans was the person he confronted face-to-face. That point was also not mentioned in the summary. Sorry for that as well.

Regarding the print on the glass, there need not be any suggestion that Cowans picked the glass up with one finger. That glass was probably thick with fingerprints from people who lived in the house. Furthermore, not every print left on a surface as smooth as glass leaves an identifiable print.

In an age of non-DNA evidence, what better evidence is there than a fingerprint? Can you identify any more reliable form of forensic evidence, at least for that time? If a fingerprint match and the eyewitness identification by a trained police officer (who confronted the defendant face-to-face) is not sufficient for conviction, then what would be?

I return the deliberations to you and/or any other reader who wishes to join the fray.

Anonymous said...

Okay... I'll agree that it's wholly unreasonable to expect to see DNA evidence before DNA is being used in this context. Regarding the fingerprint, I understand that it isn't always possible to get a fingerprint, or a good/useable fingerprint. It was more the general lack of physical evidence that was underwhelming... and going back in time does change my expectations.

I'll admit that I'm still a bit worried about the IDs. We have at least 5, probably 6 people who supposedly saw the event: Gallagher, Pitre, Lacy, Lacy's son, another child (probably), and the witness for the defense. Based on the original excerpt, I concluded that the only people we KNEW had seen Cowans (or whoever) face-to-face were Bonnie Lacy, who carried on a conversation with the man, and Lacy's son, who opened the door for him. Neither Bonnie nor her son were able to ID Cowans. The fact that Gallagher also saw Cowans face-to-face and gave a good ID sort of balances things.

So I'm left with a fingerprint (which points to Cowans). I'd likely vote guilty. But I'd feel uncomfortable about it, since I'd be relying so heavily on a single form of evidence. What I'd like to see is some second link tying Cowans to the crime.

Anonymous said...

I voted guilty for all charges except for the armed robbery. It appears that the only item stolen was the policeman's gun. I don't see how Cowans could have stolen the gun with the gun itself. He was not armed until after the robbery had occurred.

tsj said...

That's a good observation. Based on the information we have available to us, I change my vote on the armed robbery charge to Not Guilty.

How about the home invasion charge? He entered the house only after the boy opened the door. He never pointed the weapon at anyone in the home. He dropped the weapon when asked to do so? Do you believe that was a home invasion?

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