Sergeant Lovell allowed Herbert to go into his house to clean up a bit. Then he placed him under arrest and ordered him taken to Temple University Hospital, where his hand was stitched. From the hospital he was brought to police headquarters at Eighth and Race, where detectives questioned him. He was, he stressed, trying to protect himself. Several people witnessed the events on West Oakland, but only Fairlee, and later the one other witness, agreed to speak with the police. Fairlee also went to the police station, where he told police his version of the story, casting Herbert as the aggressor. Herbert was charged with murder and incarcerated.
The crime scene investigating unit found no fingerprints on the knife, the pipe, or a pair of scissors of unknown provenance found under Shorty. At the trial, the police were unable to produce the knife, pipe, or scissors, which, apparently, had been lost. (I was told by an attorney that evidence often is lost.) It appears doubtful that detectives returned to West Oakland to try to persuade other witnesses to speak with them. After all, the case was about two poor black men arguing over five dollars, and they had closed it.
In 2005, 375 homicides occurred in Philadelphia, most in poor, heavily African American neighborhoods. Of the victims, 339 were men, and 308 were black. Many of the killings resulted from arguments, and most victims died of gunshot wounds. Most were younger than Shorty. On the week of Shorty’s death, eleven homicides took place in the city. Only four of these made either of the major newspapers, and of these, three were odd cases: a white girl shot in a drive-by shooting; a promising young man about to start college gunned down; a white man shot by a friend while sleeping on a sofa. Only in the use of a knife rather than a gun was Shorty’s death exceptional.3
Why was Herbert charged with first-degree murder when the evidence for murder was virtually nonexistent? Why was he incarcerated for so long? Why did the district attorney’s office go to trial with so little evidence and only one witness, who lacked credibility? Why was the police work so inadequate? Was Herbert’s real offense being a poor, uneducated black man living in Philadelphia’s badlands? If Herbert had been a middle-class white man, I thought, he would not have spent the last ten months in jail or find himself tried for first-degree murder. Still, looked at another way, for Herbert the American judicial system worked. He had an excellent attorney, a fair-minded jury, and an exemplary judge. Was his situation unusual, I wondered. Not long after the trial, I read Steve Bogira’s Courtroom 302, a devastating account of how criminal justice is dispensed in Chicago.4 By the standards of Bogira’s account, Herbert was lucky. These were among the questions that lingered in my mind after the trial was over. We had found Herbert not guilty, but by no means did we know or understand all that had happened.
Herbert, Shorty, and the trial haunted me. Why was I so interested in this ordinary murder case? Why did I want to know more about Herbert, Shorty, and their neighborhood? Why did the men and the trial matter? At first, these seemed easy questions, but they were not. The best I could do was to try to put myself at the center and reconstruct the trial through my own eyes and then to probe my reactions.
The jury selection had proved a bit weird. Both the DA and defense attorney were interested in my background. The DA wanted to know my children’s education, where I was educated, and whether I taught undergraduates. My degrees from Harvard seemed unduly important to them—making the DA somewhat ill at ease. The defense attorney, a man, as I later learned, seventy-nine years old with years of experience defending indigent clients, asked the subject of my doctoral dissertation. I thought it a peculiar question, but I answered politely. Later, when we met (he took a shine to me and invited me to lunch) he explained that if I had answered the question in a surly or impatient manner, he would have removed me. He could not understand why the DA let me on the jury. The defendant, Herbert Manes, was of course present during the questioning. So I had my first look at him. He looked so old, sad, and beaten down that my sympathies were on his side, and I had to tell myself to try to contain my emotional reaction.
The process of jury selection seemed to drag on for hours. It was the first taste of one of the two emotions that dominated my responses through the next few days, namely, boredom. We spent hours and hours just sitting in the jury room. We were given a time to be present, and the jurors were prompt, but for reasons rarely explained to us, we had to wait. The whole process could have been completed in one solid working day.
The other emotion was responsibility. I could not escape the weight of making a decision that would determine the rest of a man’s life. As a result, I found myself able to focus intensely on the proceedings. I don’t have a particularly sharp memory—age is having its effect that way—but my ability to remember details was far better than I expected, far better than usual, undoubtedly a sign of motivation.
The jurors were a cross section of Philadelphia. I was the only one with a postgraduate degree. One other man was a translator who also did some adjunct teaching. None of the others had professional jobs. Two were nineteen years old—one of them immature, unable to stop babbling about his life. I worried about him. (When we went into deliberations, he shut up and said almost nothing.) One woman may have been older than I; gray, quiet, and withdrawn, she said almost nothing and conveyed an impression of not wanting to be there. The most interesting and impressive juror was a large, burly man—a mechanic with a two- day growth of red stubble who wore shorts, spoke with a tough Philly accent, and had served jail time for contempt in his divorce trial. When we were deliberating, he said, “I’m not smart, but I’m street smart.” In fact, he was smart, period. He picked up important details that the rest of us had missed, and, from tending bar in the projects, he knew about street life in a way the rest of us did not. The woman who volunteered to serve as foreperson was in her thirties, a paralegal, attractive, a single mother who lived with her mother—bright, quick, and appealing. I stayed quiet in the jury room, revealing nothing about myself. I did not want them to know I was a professor at Penn. I did not want to intimidate them or have them react to me as other than someone ordinary. My cover was blown at the end when the judge, in delivering his instructions to the jury, mentioned, for some reason, that there was a professor among the jury. (When he was interviewing me and found I was a history professor, he asked me my opinion of the greatest president in U.S. history. My answer—Lincoln—pleased him; he’s a Lincoln fan.)
The jury was serious. We were instructed not to discuss the case among ourselves while the trial was ongoing. And few jurors made any remarks about it. I sensed, however, that they were following it intently, an assumption supported by their recall and comments in our deliberations. As the case unfolded, I had little idea of how they were reacting. After the first day, I knew that I could not find the defendant guilty on the evidence presented and would not be swayed. So I feared we might be in for a long session in our little room. Happily, that was not the outcome.
Judge Lockwood introduced the case well. He’s a friendly-looking but firm man who radiates fairness. I thought his conduct of the trial exemplary and his rulings correct. The DA, a slim, intense, expensively dressed and made- up woman, told us that it was a simple, straightforward case and not to expect it to be like murder trials on TV. I did not know exactly what she meant. It was, in fact, rather like TV, except that the police work did not seem as thorough and the one civilian witness wouldn’t have made the cut. I think she meant that the real-life case was a lot messier and that we would have to reach a decision with less conclusive evidence. The other jurors did not like her. They thought she was smart, but several said she frightened them. They found her cold and hard. On the last day, when she had to deliver her closing statement, she dressed all in black, which seemed overkill. I learned much later that she erupted after the jury had left the courtroom, calling Herbert a killer and a liar, berating the defense attorney, and shouting angrily at Shorty’s relatives who had criticized her handling of the case.
The defense attorney, William Gray, was, as noted earlier, nearly eighty. He has a fascinating background, having turned to the defense of indigent criminals for personal