When I was a new prosecutor we had a grocery store downtown and also a lot of hungry homeless.  This combination led to a lot of petty theft, almost always of foodstuffs.  These cases crowded my docket.

The grocery store attempted to combat the problem by hiring a security guy.  The man had to be at least in his seventies.  I still remember his name, though this goes back to 1977.  There were about eight of us who were assigned to prosecute misdemeanors in those days and we all dreaded this man's cases.  He was a terrible witness.  That is not to say that he wasn't a truthful witness; he just came across as unbelievable.  That kind of witness stand presence is the kiss of death for any case, irrespective of the veracity of the accusation pending.

One day my trial docket had me in the bowels of the courthouse, the basement floor in a small, dark, misdemeanor courtroom.  As usual, I had more cases set for trial that morning than I could handle without frustration and dismay.  All one can do is stand fast on the good, provable cases and wheel and deal the weak ones.  One makes decisions based upon provability, not how guilty one thinks a defendant may be.  The job dictates being practical and unemotional.

One of my cases was from the grocery store.  The defendant was a young black guy; the sole prosecution witness was the old man.  I had not offered a deal to the defense attorney, hoping the case might plead out.  It was not heading in that direction and I sent out the call for the old man to come to court to testify in trial.  He subsequently arrived in the crowded corridor just outside the courtroom.  The defendant was sitting on a bench at the end of the corridor along with a number of others.  Most were black, some were male.

I asked my witness if he could identify the defendant.  This often is the high point of a trial, when the prosecution asks its ID witness to look around the courtroom and point to the guy who did it.  It can be very effective if timed right and done correctly (though once I saw a witness point to one of the courtroom bailiffs!).  Anyway, he said that he could do it.

Now, it is one thing to have to identify an accused in a courtroom when any fool would realize that he was the one sitting at the defense table next to his harried attorney.  It is quite another to have to really identify someone.  I pointed down the corridor toward where I knew the defendant to be sitting with others.  I told my witness to walk down there, look around, then come back and tell me which person was his thief in this case.

He couldn't do it. 

I then announced on the record that I was dropping the case due to lack of sufficient identification.  My decision  had nothing whatsoever to do with whether or not I thought that he did it and everything to do with the case's practical unprovability. 

Soon after, the downtown grocery store went bust and my old man security guard returned to doing crossword puzzles, an activity for which I highly suspect he was better suited.

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