Sunday, March 09, 2014

The State of Oregon versus Joseph Toland

Judge Karin Immergut
"I have a high tolerance for scotch," said Mr. Sharp --a ruddy, grizzled man, about 10 years my senior. His round, watery eyes were magnified by the lenses of his spectacles, giving him a myopic appearance. The patch at the front of his black baseball cap read "Once a Marine, always a Marine. Semper Fi." "After I got out of the military for a while there, I was putting away a fifth a day." He held a paperback spy novel in his hand, closed around a cracked and grimy finger.

"You're lucky you didn't pickle your liver," I remarked.

"Not my liver," he said. "But everything else."

We sat on the bench in the corridor outside Judge Karin Immergut's court room on the fourth floor of Multnomah County Courthouse. Potential jurors were strewn up and down the marbled corridor, absorbed in their electronic devices and their books and magazines, some seated on benches, others sitting cross-legged on the floor or leaning against the walls. There wasn't much talking.

I didn't feel like talking much, either. So although Mr. Sharp waited, I didn't reply.

We each returned to our books.

Soon enough, the court assistant, an eager, clean-cut young man in jacket and tie, emerged and asked the potential jurors to come in and be seated. Twenty-nine of us filed in and filled the plastic chairs at the rear of the courtroom.

Judge Immergut sat at the bench. She was a woman about my age, with a wise and kindly face. She wore her hair parted on the side. She projected a down-to-earth sensibility that gentled the authority afforded by her judge's robes. This was a woman  temperamentally suited to be a judge. My impulse was to admire her.

The attorney from the DA's office was a tall, square-shouldered young man with a thin strip of carrot-colored beard running along his jaw. He sat at the right side of the long table before the bench. To his left sat the counsel for the defense, a studious-looking young man, clean-shaven with dark hair, an open face, and an erect posture. He looked as if he might spring from his seat at any moment. He wore Clark Kent glasses and a dark blue suit jacket.

Next to defense, sat the accused Mr. Toland.

Mr. Toland wore slacks and sneakers and a brown suit jacket that was a size too big. His head was shaved on top, but a well-trimmed beard  and moustaches grew thick on his chin and jaw. The orange-red of his beard stood in stark contrast with his gray eyes. He had a long head and a doleful expression. He kept his eyes on the table surface when we came in, his shoulders pulled inward, as if he were trying to draw into himself, to hide. I thought of an abused dog.

The case was simple. Mr. Toland was charged with possession of a Schedule I drug. Specifically black tar heroin.

Black tar heroin
The defendant was arrested in February, 2013, when a Portland City police officer responded to an emergency call about an incident in Waterfront Park, near the Salmon Street fountain. The officer found Toland unconscious and laying on a park bench. While awaiting the arrival of emergency medical technicians, the officer performed an assessment of Mr. Toland and discovered a plastic baggie containing about a half-gram of black tar heroin.

The generalities of the case thus explained, jury selection began.

Counsel for defense rose. "I'd like to hear from everyone. Now that you know the allegations, is there anyone here who has strong feelings about heroin that he or she feels might preclude his ability to judge this case fairly?"

Mr. Sharp, the scotch drinker, raised his hand. "I was an MP in Vietnam. I saw a 14 year old girl die from heroin use. I'm biased toward drug-users and I think my opinions would cloud my judgement." Defense thanked Mr. Sharp for his comment.

Behind me, a young woman with hair cut close around her ears, raised her hand. She wore wool leggings and a loose sweater and seemed casual and unconcerned with her own beauty. She spoke. "I think drugs should be decriminalized and I don't think people should be prosecuted for drug use. I don't think I could be objective on a case like this." She wore an expression of sullen defiance.

Several others nodded their heads in agreement. Judge Immergut interjected. "As jurors, you should not give any consideration to sentencing. You job is to determine the defendant's guilt or innocence." She turned to the idealistic young woman, addressing her by name. "Ms. Carter, you don't feel you can judge the case fairly?"

Ms. Carter shook her head. I thought I caught a glint of pride in her unhappy expression. God bless her, she had a flag to wave and she'd found the courage to wave it in court. It was brave of her and it made me like her.

Alas, her cause wasn't the issue at hand.

Counsel for defense asked me how I felt about it. I tried to speak carefully. "I don't think incarceration is an effective way to discourage drug use. But I think I can judge the facts of this case without bias."

(Last time I served jury duty, I took a different approach.)

Twelve of us were selected for the jury. Ms. Carter and Mr. Sharp were not among us.

State's case was straight-forward. He reasserted the allegations we'd heard earlier. We saw video and listened to the testimony of the arresting officer. He was tall and thin, with an angular face and a dark complexion. He reminded me of the actor, Jeff Goldblum. He was self-assured and credible.

Defense did not cross-examine the officer.

Scene of the crime
Defense then presented its case. In his opening statement, counsel emphasized the exact wording of the charge against Mr. Toland. Specifically, counsel informed, the charge included the word "knowingly." That is, Mr. Toland knowingly possessed the drug. That word, counsel insisted, was the difference between guilt and innocence.

Counsel called the defendant as its sole witness. Mr. Toland claimed he did not know how he had come into possession of the heroin. He was a recent arrival in Portland at the time of his arrest. He'd come from North Dakota and was staying with a friend. On the night of his arrest, he testified that he had gone out that evening by himself. He'd gone to a bar, the name of which he could not remember, and had proceeded to become inebriated. His last memory of the evening, he claimed, was leaving the bar when his money ran out.

That was it. That was his story. Too drunk to remember what happened.

The State cross-examined. Had Mr. Toland ever used heroin? Yes. Did Mr. Toland remember telling the police that he had used morphine the evening of his arrest? No. Did Mr. Toland remember telling the police that he had injected morphine that he had bought on the street? No.

This continued for about 10 minutes. Defense raised two objections. Judge Immergut overruled one and sustained the other. At the end of the defendant's testimony it was obvious that the sandwich had no meat.

Defense rested.

State recalled the arresting officer who testified that he had not smelled alcohol on the defendant at the time of the incident. The State rested.

Closing arguments ensued and then we, the jury, sequestered in the jury room.

It was over in about twenty minutes. Out of fairness to Mr. Toland, we tried to imagine some credible scenario in which he might have unknowingly come into possession of heroin. "What if one of the bystanders slipped it into his pocket before the police arrived?" someone suggested, doubtfully. Nobody felt like making a stand on that hill.

"He probably bought it when he was drunk," someone said.

"Being drunk isn't an excuse," someone else said.

We informed the bailiff that we'd reached a verdict.

When we were back at our seats in the courtroom, I handed the verdict form to the bailiff, who passed it to Judge Immergut. When she read it, no one betrayed a hint of surprise. Least of all, Mr. Toland. I watched his face. His expression fell ever so slightly, in a kind of facial shrug. Resignation. But no surprise.

"Okay, now I just have one thing I do before I dismiss you," the judge said. "I want to poll the jury just to make sure we have a legal verdict. By a show of hands, how many believed Mr. Toland was guilty?" She scanned us quickly. "Okay, it looks like it was unanimous. Thank you, jurors. You are dismissed."

Moments later, as we were gathering our belongings from the jury room, Judge Immergut stepped in to speak with us. Court was adjourned. "How'd it go?" she asked us all.

"I felt bad," I said.

She nodded. "Yeah," she said.

On the bus home, I thought about it some.

Counsel for the defense did a good job of evoking pity for Mr. Toland. I felt for him. Thirty years old, physically disabled because of a car wreck in 2011, two years out of work. A life getting flushed down the toilet.

But he'd presented no case.

The smells of garlic and liver greeted me when I stepped in the door. Maty was at the stove.

"Hi, sweetheart," I said.

She heard something in my voice and turned to look at me. "What's wrong?" she asked.

"Nothing," I said. "I'm just a little sad."

Update: Joseph Toland was sentenced to 18 months probation and 60 hours community service. He was also required to attend a drug treatment program and fined $200. If he completes the 60 hours of community service, the $200 fine is waived.

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