No Justice For Carmen

On May 10th, 2012 I had the opportunity to serve as the foreman of a jury.  The case was the murder of Victoria Carmen White, which had occurred in September of 2010.  The case took a little over two weeks to try and in the end after about a day and a half of deliberations we acquitted the accused on all counts.  In the time since I’ve searched the web for information on the case (let me stress here that I scrupulously avoided looking for anything about the case from any source during the trial as instructed by the judge).  I’ve found a number of blog posts and comments in news site articles, which I will not link to here, expressing a great deal of misinformation and, in some cases, some insults directed towards myself and my fellow jurors.  I’d like to try to set the record straight.

I’m going to begin with my recollections of the case sent in email to a friend the day the trial ended.  (Again, I did not discuss the case at all while it was in progress.  My mother was very irritated with me because I wouldn’t even tell her what case it was.)

I was on the Victoria Carmen White murder trial (Carmen to her friends).  She was shot Sept. 12 2010 in Maplewood.  The accused, one Alrashim Chambers, and his friend Marquise Foster had met her and four other women at The 43rd St. Cafe, a sort of nightclub, in Irvington.  Carmen and Chambers exchanged some contact information as the women were leaving after last call and went to an after-hours place to buy some booze (and two dime bags).  The women went to the apartment of Sharon White, Carmen’s cousin; two of the women in the group having parted company with them.  The men showed up a while later; Carmen and the third woman, a Natasha Wray, went downstairs to show them where to park and let them in.  There was some general chat and passing around the bottle of E&J the men brought; Chambers admitted to smoking pot and Carmen may have as well (not clear from the testimony).  Natasha and Sharon went into the bathroom to make out; it was a studio apartment and they wanted some privacy and wanted to give Carmen some privacy with the men.  Foster attempted to join the two in the bathroom while Chambers was making out (above the waist) with Carmen but was rebuffed.  Both women testified that some time after that the door to the bathroom (which did not lock) swung open for no clear reason; Sharon took the opportunity to ask her cousin if everything was OK, which Carmen said it was, and Natasha closed the door again.  Sharon testified that a few minutes later she heard the outside door to her apartment building slam, which she said it did all the time when people were coming or going (Natasha did not mention the door slam at all).  A few minutes after that both women heard one of the men (neither could identify) say “yo, you a dude!?!” followed immediately by three gunshots.  Sharon tried to leave the bathroom immediately but Natasha blocked the door, afraid they would be shot too.  Sharon went out the bathroom window to try to get help; by the time she returned with the police the men were long gone and Carmen was dead with three gunshot wounds.  (For what it is worth, she would have been dead long before Sharon got back and Natasha worked up the nerve to leave the bathroom, nor is it likely the women could have done anything to save her.  One of the bullets perforated the aortic arch resulting in 1900cc of blood entering the pericardium.  She would have been dead in a minute, perhaps two, and there’s just no first-aid solution to something like that.)

Victoria Carmen White, as it turns out, was a post-operative transwoman, a male-to-female conversion.  For the record, the forensic pathologist testified that until she began a surgical examination of Carmen’s remains she could not find any evidence that Carmen was not a woman.  If you check Google (which I did not do until after the trial) you’ll find several pictures of her and except for being tall for a woman (73 inches) she looks like a woman.  Enough like a woman that she was either working as or training to be (accounts differ) a lingerie model.

That’s the sequence of events everyone pretty much agreed on.  The police didn’t have much to go on.  Sharon and Natasha never got the men’s names, not even first names.  They could describe their vehicle, a dark SUV, but didn’t have a license plate number.  A motion-sensitive camera at a gas station down the street got some video of the SUV (again no license plate) along with what was almost certainly the men arriving and being met by Carmen and Natasha and the men leaving.  There were vaguely people-shaped blobs moving about; the camera was at least half a block away and not focused on the apartment building.  (No one on the jury asked for the Magic Enhance Button; we had no “CSI Effect” issues.)  The time stamps correlated to the approximate times of events as the women remembered.  The gun was not present at the scene and was never recovered.  Security video from the night club showed various significant individuals at various points, as well as what could have been the SUV (no license plate).  The police circulated descriptions of the men.  About a month later the two rocket scientists went back to the club and an employee recognized them.  He got their license plate number and called the police.  The SUV was borrowed from a relative of one of the men (can’t remember which now) but talking to family members got the police names to go with the descriptions.  Once they had names Sharon and Natasha were called in for photo arrays; both women picked both suspects.  We heard testimony from the detectives who conducted the arrays and video of the sessions.  All proper procedures were followed; the investigating detectives assembled photo packets which were given to detectives who knew nothing about the case to show to the witnesses.  Warrants were issued; a few days later both men separately turned themselves in accompanied by counsel.  DNA taken from the scene (cigarette butts, glasses, etc.) confirmed the presence of the suspects and witnesses at the scene; there were no usable fingerprints.  Ballistic evidence was inconclusive.  The forensic pathologist could not determine which of the bullet wounds was first or in what position Carmen was in relation to the shooter.

While in custody Foster wrote to the ADA on the case, Eileen O’Connor, claiming he could supply a witness that would corroborate his version of events in which Chambers was the shooter.  That witness was Shantay Chambers, Alrashim’s cousin, a women with whom Foster was romantically involved.  She was, in fact, pregnant with his child at this time.  (The final disposition of that pregnancy was not disclosed to us.)  She was brought to the prosecutor’s office but refused to give a statement.  The prosecutor had the grand jury issue a subpoena.  Shantay testified to the grand jury that in the early hours of Sept. 12 2010 she overheard a conversation between Alrashim and Foster in which Foster said “why did you do it?  why did you do it?” and Alrashim said, allegedly as if crying, “I didn’t know…I didn’t know….”  Foster was allowed to plead guilty to hindering apprehension (basically, driving the getaway car and not coming forward immediately) with a maximum sentence of five years in exchange for his testimony against Alrashim.  Shantay was called to testify at Alrashim’s trial….

…where she recanted her testimony, claiming Foster convinced her to make it up.

Foster testified that Alrashim tried (consensually) to penetrate Carmen but couldn’t, leading him to the belief that Carmen wasn’t a “real” woman, then told him to “get his shit, we’re leaving” and shot her.  Alrashim testified that he made out with Carmen a bit but stopped there because he didn’t have a condom, then left the apartment when Foster tried to get head from her (with his pants down), ostensibly to get the other dime bag out of the car (only one was found at the scene) and couldn’t get back in because the inner vestibule door locks and he didn’t know which apartment bell to ring.  He was stuck there when he heard the shots followed by Foster running out telling him to get in the car.  With Shantay’s testimony recanted there was no real corroboration for either man’s story which led us to acquit on all charges.

There are the basics of the case, more or less.

Law and Order told us at the start of every episode there were two parts to the criminal justice system, the police, who investigate crimes, and the district attorney, who prosecutes them.  There are two more parts, at least; the judge and the jury.  In the course of reading the web’s thoughts on this case I’ve found a lot of negativity directed at the police, claiming they botched the investigation, the prosecutor, claiming she mishandled it and the jury, claiming we were either stupid or bigoted.  (The judge, The Honorable Thomas Moore, appears to have escaped the public’s ire and deservedly so, in my opinion; it seemed to me he did a good job.)  I’m going to address all three areas, as best I can.

The Police

It seemed to me that the police did a good job with the case, though there are some rough spots I’ll get to later.  They had very little to go on at start, sadly, despite having two witnesses maybe fifteen feet away from the shooting.  Unfortunately those witnesses were behind a closed door and distracted, meaning they didn’t see the shooting and couldn’t identify the voice of the presumed shooter.  (Technically we can’t dismiss the possibility that one man made the exclamation “yo, you a dude!?!” while the other one shot Carmen, but I’d say that’s remote enough to be outside reasonable doubt.)  The murder weapon was removed from the scene and never recovered, which was another major setback.  No usable fingerprints were recovered either, which actually is not unusual.  On television if a criminal so much as looks at an item he’ll leave a perfectly crisp fingerprint that leads to a flawless identification.  In real life, mystery author and former Pinkerton investigator Dashiell Hammett once wrote “Even where the criminal makes no attempt to efface the prints of his fingers, but leaves them all over the scene of the crime, the chances are about one in ten of finding a print that is sufficiently clear to be of any value.”  That was in the 1920s, of course, and the odds have gone up since thanks to technological improvements but it’s still the case that most fingerprints found at crime scenes are either too smudged or partial to be useful in identification.  DNA was recovered from the scene but that only verified that the suspects were there once they were in custody.

Despite these setbacks the police did pursue the case with due diligence.  They followed up on the descriptions of the men and their vehicle given to them by Sharon and Natasha and checked all the security video they could get their hands on.  They were still on the case weeks later when a tip came in from the 43rd Street Cafe, a tip that led to the arrest of both suspects.  They followed proper procedure and secured rock-solid identifications of both.  The defense made very little attempt to contest the work done by the detectives on the case.

There were only two gaps of any note, I would say, and both were brought up in deliberations but didn’t play much part.  One of the jurors observed that we had heard no testimony regarding investigation of cell phone activity.  Both Alrashim and Marquise had testified that Alrashim was using a pre-paid phone that had no time left on it, but there were texts between Marquise (who had a standard subscription phone) and Carmen giving directions to the apartment.  It does seem that had the police checked Carmen’s cell phone those texts should have led them to the suspects sooner.  Even if the shooter had the presence of mind to take Carmen’s phone both Sharon and Natasha, to my recollection, testified as to the cell phone activity.  Knowing that the victim had texted the suspects the police should have been able to get some information from her service provider.  The likely case, of course, is that they did follow up on this and for whatever reason didn’t get any useful leads, and it almost certainly wouldn’t have changed the outcome of the trial, but it would have been good to hear the detectives testify about it.

The other gap had to do with the bottle of E&J brandy mentioned above.  I noticed while examining crime scene photos during deliberations that the bottle was found in the bathroom trash can.  This doesn’t comport with any version of events as testified, at least to my recollection (and none of the other jurors contradicted me).  I didn’t recall either woman testifying that they had take the bottle with them when they retired to the bathroom.  It doesn’t seem likely that Marquise would have allowed that, either; he himself had admitted on the stand that he was put out over how much he’d spent on the liquor especially since he wasn’t getting any action.  It’s probably nothing, of course.  It can be taken to show that we didn’t get a completely accurate account of what happened in that apartment that night, but we really knew that already.   It certainly doesn’t tell us who the shooter was.  It does, however, lend a little more doubt to the matter, and again it would have been better if the detectives had noticed the inconsistency and resolved it for us in their testimony.

These small matters notwithstanding I don’t think criticism of the police effort is warranted.  Given what they had to work with I don’t see how they could have delivered a better case to the prosecutor.  If this were an episode of The Closer Brenda Leigh would have taken that brandy bottle and used it to perform some linguistic judo on one or both suspects and gotten a confession, but in real life both suspects had lawyered up before being taken into custody.  Both men surrendered to the police on the advice of counsel when they heard the police had arrest warrants out for them.  Both were hardened criminals; each of them had done time.  Criminals who have done time know better than to talk to the police.

The Prosecution

That brings us to the prosecution’s handling of the case.  Obviously Ms. O’Connor’s decision to go for a murder conviction against one defendant instead of a conspiracy charge against both (which was the original indictment) didn’t work.  That doesn’t mean it was a bad decision.  Calling it a bad decision just because it didn’t work is Monday-morning quarterbacking.

For starters, we don’t know what prompted that decision.  Certainly it’s possible that presented with Marquise Foster’s offer to flip on Alrashim she decided to double down.  It’s also possible that she found for statutory reasons she couldn’t sustain a conspiracy charge and had to pick a shooter.  Not being a lawyer, I have no idea if that’s the case, but that’s kind of the point here.  It’s also possible she or her superiors were pressured into going for a murder conviction by outside forces, perhaps state or municipal leaders wanting a get-tough attitude or caving to demands from special interests.  IF such pressures were brought to bear I would hope that those responsible would learn from this that justice is best served when prosecutors are free to structure their cases as their training, instinct and experience indicate.

That brings us to Shantay Chambers.  It seemed to me (and, to my recollection, several other jurors) that Ms. O’Connor was blindsided by Shantay’s recantation.  I got the impression that she found out Shantay was going to flip only just before that day’s session.  It’s easy to see how given Marquise’s testimony and Shantay’s corroboration one might decide to go for the murder charge against Alrashim.  Personally, from my limited perspective, it’s not a decision I would have made.  My education is in computer science and philosophy, mostly an engineer’s perspective, and something you’re taught to look for in engineering is the dreaded “single point of failure”.  If your whole system, and we can consider a prosecutor’s case to be a system, hangs on one element holding up, you need to step back and re-think what you’re doing.

But that’s assuming that Shantay Chambers was a single point of failure.  In evaluating Ms. O’Connor’s decision we also have to allow for the possibility that other elements of her case may never have made it to the jury.  Several times during the trial the jury was excused earlier than normal so the judge could resolve disputes between the attorneys.  I have no idea if this is routine, as I’ve only been involved in one trial and thus have no frame of reference for comparisons.  Normally in Essex County motions are heard on Mondays and Fridays so trials can be held without interruption the rest of the week.  I do know there was at least one piece of evidence Ms. O’Connor wanted to present but could not: the letters Marquise Foster had written her from prison.  Before presenting the letters during Marquise’s testimony the defense attorney called for a sidebar.  She then tried to read from the letters but that resulted in another sidebar.  Following that she settled for summarizing the letters in her own words and asking Marquise to confirm, which he did.  Clearly there was something in there she wanted us to see and the defense didn’t want us to see, and the defense won the decision.  No, that’s not a criticism of the judge, either.  Judges have a thankless job; they have to weigh the value of evidence or testimony against numerous legal principles.  Often they have to refuse to admit evidence or testimony they know would cement a conviction because of larger issues.  I don’t envy them.  Personally I thought Ms. O’Connor was doing very well until she suddenly rested her case.  I tried to keep my poker face on (though I’m sure both attorneys, having many years of trial experience, knew what I was thinking before I did) but when she rested I immediately thought “oh, crap!”, and you could hear an audible gasp from about half the jury.

Finally, and I won’t say much about this because I’m really shooting from the hip on this, but a look through news articles on the case dating from 2010 and 2011 suggests that the case had been handed off between several prosecutors.  Ms. O’Connor may simply have been stuck with cleaning up someone else’s mess.

Ultimately I don’t think we know enough about what went into the prosecution’s case to fairly criticize Ms. O’Connor for her handling of it.  If mistakes were made in the district attorney’s office I think they were made by more than one person.

We, the jury

With apologies to Mickey Spillane.

A few ground rules here: I’m not going to discuss anything any specific juror said.  It’s not my place to repeat such things.  If they want to come forward they will; otherwise it’s no one’s business.  This means I’ll largely be discussing conclusions the group agreed to as a whole.  It also means I’ll be talking almost entirely about things I said and did during deliberations, and that shouldn’t be construed as me taking undue credit for the group’s decisions or claiming that I had excessive influence over deliberations.  As foreman I did my best to make sure that everyone was allowed to speak freely and without being pressured by the group.

Complaints about the jury have largely been: that we were “stupid”, that we didn’t examine the evidence, or that we were biased against the LGBT community.  I’ll deal with each of these in turn.

“Stupidity”:  I myself have a bachelor’s in computer science with a minor in philosophy.  While I do not pretend to the wisdom of Solomon I do think this makes me smarter than the average bear.  (FWIW, my instructors have said as much.)  All of the other jurors had bachelor’s or master’s degrees, or professional certifications in advanced fields.  We were not the stereotypical “twelve people too dumb to get out of jury duty”.  I was not even trying to get out of serving though I did disclose things that I knew could result in being dismissed.  The last time I was on jury duty, many years ago, I mentioned that I was studying philosophy with a concentration on logic and critical reasoning and that got me tossed so fast I thought they had an ejector seat for the purpose.  Not this time, though.  If I really wanted to get tossed I’d have mentioned that I wrote a paper on sexual reassignment surgery in college (it was on the Reimer case; Google it if you want to know (you don’t) and it was entirely on issues related to philosophy of science with no attention to the normative values involved), or that I have written on the net against gay marriage (which I won’t elaborate on here; maybe in another post).  Enough of that tangent; the point here is that my fellow jurors were all sharp, intelligent people.

Due diligence:  I will admit that there were certain items of evidence we did not examine, but that was only because there wasn’t much point in doing so.  We did not, for instance, open the envelopes we were given containing the bullets removed from Carmen’s body.  Why would we?  “Yep, that’s a bullet” is about all we’d be able to tell.  Nor did anyone, to my observation, bother to examine the photo packets used in the identification process.  There was no need.  The defense made only the most perfunctory of cross-examinations of the first detective involved in the identification of the suspects and no cross of the second one at all.  The defense did not even try to deny that the defendant was present at the scene of the crime.

Rather than waste time with elements of the case that didn’t warrant the effort, we spent our time on things that did.  We went over the crime scene photos with great attention, trying to relate the testimony of the witnesses to the layout of the apartment and details found by the detectives.  We spent a lot of time going over the testimony we’d heard, particularly from the witnesses.  When we disagreed in our recollections of key parts of the testimony we asked to have it read back to us.  We took our duty very seriously and went over anything anyone expressed any doubts or concerns with.  Our decision was not made lightly. In the end we were forced to conclude that the physical evidence could not establish who pulled the trigger and that Shantay Chambers had no credibility whatsoever.  Without her corroboration, Marquise Foster’s testimony was just the self-serving statement of someone who very easily could have committed the crime.  It came down to “he said/he said”, or to use the phrase that was thrown around in deliberations, “dude versus dude”.  That’s reasonable doubt every day of the week.

I said I would discuss things we decided on as a group, and this is one of them: we all hated the fact that we couldn’t return a guilty verdict.  We knew there would be no justice for Carmen.  We were not happy with that.  We were all certain that either Alrashim Chambers or Marquise Foster was the shooter but there was no way to narrow it down any closer.  One way or another a murderer escaped justice.  If Alrashim was the shooter he got away with it.  If Marquise was the shooter he plead himself into five years instead of 30 to life.  We gladly would have hanged them both if we could.  As foreman I had to read the verdict in open court and it was the hardest thing I’ve ever had to do.

Bias:  We went through an extensive voir dire process with several levels of questions intended to identify anyone biased against transexuals or the LGBT community in general.  The court went through two jury pools to find the necessary fourteen jurors.  (As a side note, we lost our two alternates very early in the trial for undisclosed reasons.)  I did not hear any member of the jury at any time, in or out of deliberations, say anything that even suggested any bias.

I’ve seen a few accusations that we fell for a “gay panic” defense.  While passion/provocation manslaughter was listed as a lesser included charge in the indictment the defense did not attempt to claim gay panic; their defense was the claim that Marquise was the shooter.  The topic of gay panic only came up once in open deliberations and I was the one who raised it.  Early in deliberations I was looking at the lesser included charges and said to the group that the only one that made any sense to me at all was passion/provocation manslaughter but I was not willing to endorse the idea that finding out someone you’re making out with is transgendered in any way, shape or form constituted “sufficient provocation” to warrant any kind of violent response, never mind murder.  No one disagreed with me.  It just wasn’t a factor.  Our verdict was based on reasonable doubt; there was not enough evidence to secure a conviction.  That’s it.

On a related point, I saw several respondents around the web attempt to blame the victim, saying that Carmen should have disclosed her gender status.  Folks, it is entirely possible that Carmen was shot because she disclosed her gender status.  The coroner, a woman with decades of experience who had performed thousands of autopsies, testified that she could not tell Carmen was not a natural woman until she began a surgical examination.  It’s hard to believe that these two mooks, either of which in my opinion would be having a good day if he could find his head with both hands, somehow figured it out.  Yet it seems pretty clear that she was shot because of it, and if we had been able to convict on the murder charge we’d have had no problem at all convicting on bias intimidation as well.

In Conclusion

I will not claim I even pretend to understand the loss, grief and outrage Carmen’s friends and relatives must be feeling.  Likewise for the LGBT community, which has had to once again bear an injustice gone unpunished against one of its own.  In circumstances like these it’s natural to look for someone to blame.  It would be nice to be able to tell you not to blame us, the jury that acquitted Alrashim Chambers, to say that we had no choice.  But as I said I’m a student of philosophy and I can’t say that we had no choice unless there was in fact nothing else we could have done.  We did have a choice.  In fact we did have to choose.  We had to choose who would be the victim of injustice: either Victoria Carmen White, whose murder would go unpunished, or Alrashim Chambers, who would be convicted despite the lack of sufficient evidence to overcome reasonable doubt.  We chose to keep our oaths as jurors and acquitted the defendant, thus visiting injustice upon Carmen.  If you’re going to be angry at us for doing so that is your prerogative.  All I ask is that you blame us for what we did, not for what we didn’t do.  We weren’t too stupid to understand the case.  We didn’t treat it frivolously.  We weren’t biased against Carmen.  We heard the case, deliberated it and in the end did our duty as specified in the oath we took.  If that makes us the bad guys…I can live with it.

One last point: time and time again we have these cases that make it to the media, some bigger than others, and as a result everyone has an opinion on them.  People, if you weren’t sitting in the jury box you don’t really know what went on.  The media spins things to suit itself, and even the most scrupulously accurate of accounts leaves out a litany of details.  If all you know is what you see in the media then you weren’t there to see the look in the witnesses’ eyes or hear the timbre of their voices.  It’s easy for the media to make a defendant’s guilt seem obvious.  That doesn’t make it true.

Dennis Heffernan

No one of consequence.

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