The Second Circuit Court of Appeals deals with a wide range of exceptionally difficult cases: terrorism, organized crime, white-collar crime, and a host of run-of-the mill criminal cases.
In a January 17, 2014 decision, United States v. Clark, Judge Jon O. Newman, writing for the court, opened with this lead: “The appeal of a criminal conviction presents extraordinary facts that challenge a reviewing court to take seriously its constitutional obligation to assure that evidence resulting in a conviction was sufficient to permit a jury to find guilt beyond a reasonable doubt.”
That lead signaled that the case of Jeremiah Clark was not ordinary.
Clark was arrested on November 16, 2002 in Lockport, New York. His arrest was triggered by a 911 call to the local police department that a group of men had just left the Gonzo Bar and were possibly armed. The caller said the men had tried to “jump somebody” and had left the scene in a white Jeep Cherokee. When the responding officers arrived at the bar, they saw a white Jeep Cherokee parked with four occupants in it. One of those occupants was Jeremiah Clark. The police searched the vehicle and found a firearm inside. The officers placed Clark under arrest.
A sheriff’s deputy named Anthony Giamberdino put Clark alone in the backseat of his patrol car. Clark was handcuffed with his hands behind his back at the time. Prior to being placed in the police vehicle, Lockport police officer Steven Abbott searched Clark by patting his waist, pockets, pant legs, and coat. No contraband was found. It took approximately one minute for Deputy Giamberdino to drive from the arrest scene to the police station. Sheriff Gary May helped Clark out of the police vehicle and escorted him to the police station’s booking area.
After Clark was in the police station, Deputy Giamberdino lifted the cushion of the backseat out and up. In the vacant space area, Giamberdino retrieved a quantity to “a white powdery substance” that tested positive as crack cocaine. The cocaine was not in a bag or other container. Giamberdino would testify at Clark’s subsequent trial that he had checked the space behind the seat at the start of his shift and it was clean. He also testified that Clark had been the only person to occupy the backseat that evening.
Clark was indicted, and convicted, on two counts: felon in possession of a firearm and possession of a controlled substance. The Second Circuit had no problem upholding the firearm conviction but the matter was not as simple with the crack cocaine possession conviction. The court had to determine whether there was sufficient evidence to sustain Clark’s drug conviction.
Sheriff May testified at trial that the link between “the two bracelets of the handcuffs” was no more than one or one and one-half inches. The sheriff also testified he did not see any “white powdery substance” on Clark’s hands, pants, or jacket; nor did he see any of the substance on the backseat until the seat was removed. He added that “no glassine envelope or other container” was found in the patrol vehicle or on Clark’s person.
On cross-examination, Giamberdino testified: “Deputy May saw a lighter on the seat, and I went to grab it, and then I just did my check right there, and that’s when I noticed the white powdery substance.” The Second Circuit noted, however that none of the officers checked the lighter and/or the inside of the Clark’s pockets for a white powdery substance—“a logical thing to do if they thought Clark had brought the cocaine into the car.”
How did the white powdery substance get under the backseat of the patrol car? The appeals court said there were only three ways: 1) “Clark might have removed the quantity from his person or clothing and wedged it into the space underneath the seam where the back-seat cushion meets the back-seat rest;” 2) “someone other than Clark might have inadvertently left the crack cocaine in that space before Clark entered the police car;” or 3) “someone other than Clark might have deliberately placed the crack cocaine in that space after Clark got out of the vehicle.”
Jeremiah Clark’s conviction could stand only if the jury reasonably believed the first possibility beyond a reasonable doubt. Clearly, by virtue of its guilty verdict, the jury believed Clark was source of the crack cocaine. The question, then, before the Second Circuit was whether that verdict was reasonable after the court examined the evidence in a “light most favorable to the prosecution” as required by U.S. Supreme Court precedent.
The appeals court began its analysis of that question by highlighting eight undisputed facts: “(1) Clark was patted down for weapons before being placed in a police car; (2) no object large enough to contain a substantial quantity of crack cocaine was noticed; (3) Clark was then placed in the back of a police car with his hands handcuffed securely behind his back; (4) the ride to the police station took about one minute; (5) shortly after Clark got out of the vehicle, with hands still handcuffed behind his back, a police officer lifted the backseat sufficiently to disclose a space between the back edge of the back-seat cushion and the lower edge of the back-seat back rest; (6) in that space the officer found a quantity of crack cocaine measuring more than five inches in length and about one inch wide, and of sufficient depth such that some quantities of crack cocaine [were] visible above the layer of fully powdered crack cocaine; (7) no traces of crack cocaine were observed on Clark’s clothing or on his hands; (8) no glassine envelope or similar container customarily used for holding a quantity of crack cocaine was found in the police car, nor was Clark observed to have discarded such a container after leaving the police car.”
Against this undisputed factual backdrop, the Second Circuit could not conclude that there was an “absolute impossibility” that Clark, with his hands cuffed securely behind his back, could have removed the large quantity of crack cocaine from his person or clothing and wedged it into the space where it was found. The court added, however, that “the possibility of such an occurrence is so exceedingly remote that no jury could reasonably find beyond a reasonable that it happened.”
With that conclusion drawn, the appeals court had no choice but to reverse Clark’s drug conviction. It explained why:
“ … The remote possibility [that Clark stashed the crack cocaine in the police car] is diminished virtually to zero by the fact that no glassine envelope or other packaging material was found in the police vehicle or on Clark’s person. It taxes credulity to think that Clark carried such a quantity of crack cocaine loose in his pocket and, while handcuffed, extracted it from his pocket and secreted it where it was found, all without leaving a trace on his person or clothing.
“Whether or not the extraordinary improbability of circumstances for conviction on [the drug charge] in fact occurred, it is better to honor the constitutional standard of proof beyond a reasonable doubt by appropriate appellate review than to require Clark to serve three extra years, in addition to the ten years for [the firearm offense] of which he is highly likely innocent.
“It has been said that it is better to let ten guilty persons go free than to convict one innocent person. In the past, some have favored higher ratios. However one prefers to quantify an unacceptable risk of convicting the innocent, it is difficult to imagine a case where the possibility of an innocent person has been convicted of an offense is greater than the one now before us.”
We applaud the courage of the Second Circuit. Most state appellate courts, and several Federal circuit courts of appeal, would have let the conviction stand. Many of the judges on these appeal courts believe that they should never risk freeing a guilty person under any circumstance. The difference is that the Second Circuit did not weigh the risk of Clark being guilty and getting over on the system. The court weighed only that the jury’s guilty beyond a reasonable doubt verdict was unreasonable.