Improbable Cause

“Don’t do it! Don’t go there! Don’t even think about it!”

Rob was practically yelling at me.

“You will screw up the case, create a mistrial. You could be held in contempt of court. You could be fined. Do time in jail. So don’t do it.”

It was good advice. And given that my old pal Rob was a lawyer, it was likely informed advice. Which was why I called him, even though it had been a while since we’d talked.

“And furthermore,” Rob said, “You have already committed juror misconduct just by telling me about the case. Do not reveal to anyone that we had this discussion. Didn’t they stress that?”

“Yes, yes, they did,” I said. “It’s just the whole moral quandary thing. The idea of a defendant getting shafted maybe.”

“Then vote ‘not guilty’ at the appropriate time. Until then, do not go outside the boundaries of your duty.”

He was right, of course. Everything he said was sound. But yet, the temptation burned within me. Burned worse than adolescent lust.

You see, I’d been called for jury duty and got seated on a criminal case. During the jury selection process, neither the prosecution nor the defense found any reason to bump me. I saw no reason either. I wasn’t crazy about being on a criminal case, but I figured it would be brief. Real life cases probably aren’t anywhere near as complicated as the ones on TV. It would all be fairly routine.

Wrong.

The first weird thing was the crime itself. The victim had a habit of perching on his porcelain throne at particular time of day and for a leisurely duration, ensconced with a newspaper and cigarette. His arrival was announced by his opening the creaky bathroom window to its maximum height.

On one such occasion, the defendant, a next-door neighbor, was in his backyard driving golf balls into an adjacent field. One of the golf balls flew through the screenless bathroom window and struck the victim in the temple, killing him. The defendant claimed it was an accident. The prosecutor claimed that it was deliberate, that the outcome was planned and intended. The charge was first-degree murder, a capital offense. The backyard golfer could get the death penalty when, at worst, he was guilty of negligent homicide, a misdemeanor with a maximum penalty of six months in jail.

I found the prosecution’s scenario completely incredible. As I began to relate the story to Rob, he didn’t want to hear it. He put his hands over his ears and started chanting, “Nah, nah, nah, nah, nah . . .”

I continued anyway, marveling at the questionable likelihood that someone could deliberately commit murder in such a manner, that anyone could drive the ball so accurately.

“It would be like a hole-in-one,” I said. “What are the odds of that?”

It turns out that Rob had become an avid golfer since I last saw him, and he knew the answer. Which means he was listening to me after all.

“The odds for a hole-in-one are 12,500 to 1 for an amateur golfer, and 2,500 to 1 for a pro. That said, there is a guy, Mancil Davis, pro golfer. He has done it fifty-one times over the course of his career, with eight of them being in a single year, and three happening within a single week. Improbable does not mean impossible.”

“Okay,” I said. “I’ll give you that. But the degree of probability depends on the configuration at the location, does it not?”

You see, I am a civil engineer. I begin every job by inspecting the site, and, if necessary, creating a topographical map. So when the alleged crime was first described in the courtroom, I naturally expected the subsequent presentation of diagrams, illustrations, and photographs of the scene. The whole works.

And what did we the jury get? Nothing. Nada. Zip. Even worse, nobody on either side even raised the issue of feasibility. Not the defense. Not the prosecution. I was stunned that no one was posing the most obvious question. And that was the second weird thing about the case, the peculiar silence about its most curious aspect.

Were both lawyers incompetent? Lazy? Incompetent and lazy? Or was I naïve to believe anyone really cared? Was this just how criminal justice sausage gets made, with no one caring what goes in or what comes out so long as the grinder keeps turning?

Then came the final weird thing. The name of the street was mentioned, the street where the alleged crime occurred. And I recognized the name. By some strange coincidence, the place where it all happened was in my old neighborhood, just a few blocks away from where I grew up. I’m close with my folks and visit often, so I pass through the area frequently.

So I suggested to Rob that I could just happen to go for a casual walk down that street. You know, just keeping fit and healthy. Just getting some fresh air. And while looking around at the residents’ landscaping and admiring their lovely garden gnomes, I might just happen to get a glimpse of the crime scene. No one would ever find out. No way for anyone to know.

And that’s when Rob launched into his “don’t do it” tirade.

“Sure, maybe nobody sees you walk there,” he said. “But there’s a reason you stink at poker. You don’t have a poker face. Once jury deliberation begins and you raise your concerns, they’re going to realize what you did. They will absolutely know.”

“Yeah, maybe. But what about my moral obligation here? The guy could get the death penalty for an accident.”

“Don’t do it.”

“I was thinking about that movie, 12 Angry Men, you know, where the Henry Fonda character brings in a replica of the knife supposedly used by the defendant. He ultimately turns the other jurors around. He saves the defendant. He’s a hero.”

“Yes, and that knife demo he did would absolutely be considered juror misconduct in the real world. You get caught doing stuff like that, the judge will rip you a new one. You will live to regret it. Don’t do it. And if you should do it, don’t tell me. I don’t want to know. In fact, we never had this conversation. I don’t even remember your name.”

When the trial resumed, the entire focus was on motive, and it seemed abundant. The victim and the defendant were classic feuding neighbors. The kind where if a branch of a neighbor’s tree was hanging over your property line, you cut it off. They called the cops on each other frequently over minor things. And, of course, all of those calls were on record. They had threatened each other repeatedly, for which there were also recordings. But still, all the hatred in the world doesn’t make you a golf wizard.

It was Friday. I had the whole weekend to think about my plan. The whole weekend to execute it. I already knew that I would.

Being a civil engineer who often went to job sites, I carried in my trunk a white hard hat, high-viz vest, and laminated photo ID card on a lanyard. To any casual observer, I would look like I was conducting some sort of official business. Even more so with the camera and tripod.

I had wondered on the way over how someone could be hitting golf balls in an old neighborhood with small backyards, then understood when I arrived. A set of high-tension wires ran behind that row of houses and either the city or the power company kept the space underneath mowed for access to a nearby transformer. It was a perfect driving range.

My inspection of the scene yielded mixed results. If the defendant was driving balls into the field, there was no way for even the worst hook or slice to fly backward at the neighbor’s house. On the other hand, the bathroom window was on the side of house, toward the back but not facing the back. To deliberately drive a ball through that window at such an awkward angle would be nearly impossible.

I concluded that the defendant was intentionally driving balls at his neighbor’s house to annoy him, and that one accidentally flew through the bathroom window. It was the only possibility that made sense. Which made it negligent homicide, a misdemeanor. Definitely not murder one.

I had performed my reconnoiter on Saturday, so I had all of Sunday to ponder my next move. I printed out an anonymous note to the defense attorney from someone claiming to be a resident on that street. “Dear Sir,” it read. “If you should look at the scene, you will find that the prosecutor’s assertions are absurd. It’s an impossible shot. Why aren’t you raising the issue of feasibility? Go out and look. Take pictures. Save your client.”

I arranged for my girlfriend to deliver the note to the defense attorney’s office prior to the trial’s resumption. And once back in the courtroom, I avoided eye contact with the defense attorney. I didn’t want to give myself away. Rob was right about one thing. I don’t have a poker face.

I was feeling pretty good. I had done the right thing without getting myself in trouble. But by the end of day, the trial had wrapped up, and the defense attorney had made his closing argument without bringing up the issue of feasibility. I was dumbfounded. Did he not get the note? Did he hate his client?

Deliberations began the next day. I was astounded to see that the other jurors were ready to convict based on motive alone, unconcerned with the feasibility of the deed.

One juror put it this way: “He threatened to kill his neighbor, and then he did. How he pulled it off is irrelevant. He did what he promised to do. Open and shut.”

I was the only one concerned with the feasibility issue and it became increasingly difficult to make my case without betraying my inside knowledge. As the morning wore on, they became more and more frustrated with me. Visibly angry even. I worried that at the lunch break they would drag me into a stairwell and pummel me to death.

There are few things crappier than the lunch served in a courthouse cafeteria, yet my anxiety prevented me from even noticing what I ate. I didn’t think I could handle the stress of an entire afternoon locked in a room with eleven people who wanted to kill me.

I decided to walk the plank. I would confess to the judge what I had done and suffer the consequences, whatever they might be. So after lunch, I trudged back to the deliberation room with the rest, prepared to confess and meet my fate. The bailiff was waiting for us. To my surprise, he told us we were dismissed. While we were off eating a crappy lunch, the prosecutor offered the defense a plea bargain, which was accepted. Case over. Again, I was astonished.

I peeked into the courtroom and saw the defense attorney sitting there alone, as if he was waiting for me. He was. I walked over.

“I get a lot of hopeless cases, as you might imagine,” he said. “But I am ethically bound to do my absolute best to clear my client, make the prosecution prove it beyond a reasonable doubt every time. This helps keeps the system honest, helps protect innocent citizens from arbitrary prosecution. So once a jury is impaneled, I scan their faces, looking for a doubter, a skeptic who might give me a hung jury. I saw doubt on your face, and when I looked at your juror information form and saw you were an engineer, I knew exactly what you would be thinking. I pinned my hopes on you being my skeptic. You were my long shot for a hung jury. So when I got that note, I knew it was you who sent it.”

“Then why the hell didn’t you raise the feasibility issue? Why?”

“I figured you would want to know. That’s why I waited for you. Are you familiar with slingshots?”

“Sure. Had one when I was a kid.”

“Probably a small, inexpensive one you got at a discount store. You shot stones at soda cans. Stuff like that.”

“Yeah.”

“So you may not be familiar with the high-end slingshots used for hunting. Very sophisticated, very powerful, very accurate, and quite lethal. Some come with wrist supports. Some even come with laser sights. They’re usually designed for steel balls as ammunition. But on some of them, you can use alternative ammunition, like say a golf ball, which is designed for aerodynamic flight.”

“Wait! You’re telling me he did it on purpose? That he really was guilty? And that he did it with a slingshot?”

“It’s an old neighborhood. The houses are close together. The defendant’s bedroom window is directly aligned with the victim’s bathroom window. The distance between is only thirty feet. Police arriving on the scene find a victim hit by a golf ball and a neighbor holding a golf club. So they aren’t looking for a slingshot. And when you don’t look for something, you generally don’t find it.”

“So why did the prosecutor go for murder one when it looks like an accident?”

“Excellent question.”

“And the answer?”

“A witness turned up. A witness who had observed the defendant practicing with a high-end slingshot and using golf balls as ammo. The witness found that peculiar. Golf balls in a slingshot. That’s why he remembered it so clearly. This obviously looked bad for my client. So in the pretrial phase, I moved to have the witness excluded. I argued that merely practicing with a lethal weapon does not suggest murderous intent. Millions of people shoot guns every day. Should they all be judged potential assassins by virtue of engaging in target practice? To my surprise, the judge granted my motion and the prosecutor did not raise a stink. I soon understood why. The judge’s granting of exclusion came with a warning. If at any point I raised the issue of feasibility, I would open the door to the prosecutor’s witness. So I was trapped. All I could do was argue absence of motive when motive clearly existed. I had no hope of acquittal. Then came my hero.”

“Me.”

“Yes. The prosecutor thought he had a slam dunk on murder one, so he declined to plea bargain. No deals. But when the morning passed without a verdict, he began to worry about a hung jury. You see, he was studying your face, also. And you don’t have a poker face, in case no one told you. So during the lunch break, he offered a deal. He’d knock it down to second-degree murder in return for a plea. We took it. My client is still looking at anywhere from fifteen to life, but the death penalty is off the table. You may have saved my client’s life. So I thank you for your service. All of it.”

My head was spinning. I couldn’t grasp everything I’d just heard, especially my unintended role. It all seemed so, well, improbable.

“Okay,” I said. “But even with a fancy-schmancy slingshot, you’re talking thirty feet through two open windows and making a direct hit to the temple on the first try. That is one hell of shot. Highly unlikely you make that on the first try.”

The defense attorney reached inside his shirt pocket and pulled out a ball point pen. He looked around the room and spied a gray plastic waste basket in the far back corner, about thirty-five feet away. He launched the pen into the air with a high arc and it dropped right in the center of the can. He turned back around and looked at me.

“Improbable does not mean impossible.”