The Industry That Depends on Eugene

April 14, 1994|By PETER A. JAY

HAVRE DE GRACE — Havre de Grace. -- The annals of the law contain ever more mind-boggling examples of the mysterious, expensive and time-consuming ways in which modern justice is dispensed. Here's an illustration from our local files.

Eugene was a fellow from the Aberdeen area who was believed to be in the business of selling drugs. (''Believed'' is a legal term of art which implies there was some doubt about it. But there wasn't much. You might as well say that that Cal Ripken, another fellow from the Aberdeen area, is ''believed'' to be in the business of hitting home runs.)

A police undercover agent set out to buy some drugs from Eugene. He asked for him by name in the neighborhood, and was promptly referred to a man who said that yes, he was Eugene, and sure, he'd sell some drugs. The agent gave Eugene a $20 bill, and Eugene gave him back the drugs and $10 in change. Then Eugene, wearing a particularly distinctive hat, got into his expensive foreign car -- with vanity license plates -- and drove away.

Some time later, Eugene was arrested and charged with distributing drugs. At his trial, the undercover investigator identified the defendant as the man from whom he'd bought the drugs. There didn't seem to be much question; Eugene owned the same distinctive hat the drug dealer had worn the day of the deal, and drove the same car with the same vanity plates. But the jury could not agree on Eugene's guilt, and a mistrial was TC eventually declared.

Prosecutors, puzzled, asked the jurors what the problem had been. Identification, they were told. If the drug-seller were really Eugene, some jurors had wondered, wouldn't his fingerprints have been on the $10 bill given as change in the drug deal? And if they were on the bill, why didn't the state say so? These suspicious jurors, overcome with what they were sure was Reasonable Doubt, adamantly refused to vote for Eugene's conviction.

There were several reasons why the prosecutors hadn't mentioned fingerprints at the trial. All were pretty mundane. First, the defense hadn't raised the question. Second, it's hard, if not impossible, to get good fingerprints from currency. Third, the description of the drug dealer -- fancy hat, fancy car and so forth -- had been so detailed that a conviction had seemed inevitable.

Maybe there was a little prosecutorial overconfidence. Maybe there was just a touch of sloppiness -- understandable considering the enormous volume of cases of this kind that flow through the courts. Maybe it was just the wrong jury. Anyway, these things happen in life, and the state's attorney's office sighed philosophically and prepared to try Eugene's case all over again.

At the second trial, the prosecution not only explained why there hadn't been any fingerprints, it produced new evidence it was sure would dispel any doubts that the defendant and the man who had sold drugs to the undercover investigator were one and the same.

During the course of a legal search of Eugene's apartment, investigators had recovered his camera, which contained exposed film. The prints showed Eugene posing in his own living room, wearing the same hat he had worn during the drug sale. He was also displaying a pistol. The pictures were introduced as evidence at Eugene's second trial, and the jury convicted him.

Naturally, there was an appeal. Eugene's lawyer said the photographs had prejudiced the jury. It is well known that drug-dealers carry guns, he argued, and showing a photo of Eugene with a gun suggested -- he was shocked that the state would stoop so low -- that he might be a drug dealer.

The Maryland Court of Special Appeals agreed, and sent the case back to Harford County for a third trial, at the county taxpayers' expense and without the photographs. But the state's attorney's office, twice burned and with many other cases to try, decided the hell with it. The charges were dropped. Eugene was already doing prison time for drug offenses committed in another county, and isn't expected to be out any time soon. His customers in Aberdeen are no doubt being serviced by a new entrepreneur.

It's quite an industry that has come to depend on the Eugenes of the world. Without them, a great many judges, lawyers, clerks, court reporters and corrections officials would have to find other work. Even so, you'd think as a general principle that one trial, rather than two or three, ought to be enough.

The little nation of Singapore is currently getting hissed by the professionally compassionate because it flogs drug dealers, vandals and certain other undesirables. This seems to work well there. It would be interesting if Maryland counties were allowed to experiment with something similar as a local option.

But even without adopting a Singaporean penal code, we'd still be doing society a favor if we imposed our kinder, gentler punishments with more dispatch and fewer lawyer-manufactured distractions. More judicial process doesn't necessarily make better justice.

Peter A. Jay is a writer and farmer.

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