Second Circuit throws out drug conviction for lack of reasonable doubt

How often does the Court of Appeals throw out a criminal conviction because there was no evidence beyond a reasonable doubt that the defendant committed the crime? Or because it is highly unlikely that the defendant committed the crime? It's rare, but it happened in this case.

The case is U.S. v. Clark, decided on January 17. Clark was arrested following some kind of tavern disturbance. After patting him down for weapons and other contraband, the police handcuffed Clark behind his back put him in the police cruiser, where the ride to the police station lasted about one minute. Here's where it gets interesting:

Once Clark was out of the police car, [officer] Giamberdino lifted the cushion of the back seat out and up, making visible the space between the back of the back-seat cushion and the bottom of the back-seat back rest. In that space he saw a quantity of a white powdery substance that later analysis determined was crack cocaine. Giamberdino also testified that he had checked this space before starting his evening shift, nothing was there at that time, and Clark was the first person to occupy the back seat of the car that evening.

Now, the cocaine that was found hidden in the police vehicle was not in a plastic baggie. It was simply loose cocaine. But no one say any white powdery substance on Clark's hands or on his clothing after he got out of the police car and was escorted to the police station. The jury convicted Clark of cocaine possession anyway. The Court of Appeals is uncomfortable with this conviction, and it is vacated.

Again, the Court of Appeals rarely does this. So Judge Newman opens the decision with the following language: "This 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 reasonably to find guilt beyond a reasonable doubt." He then gets philosophical later in the decision, noting the oft-stated quote that "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." Then, the kicker:

However one prefers to quantify an unacceptable risk of convicting the innocent, it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us.

In all likelihood, the Second Circuit (Newman, Winter and Droney [dissenting]) says, Clark did not place the cocaine in the police cruiser as a means to get rid of it before he got to the police station. In throwing out the conviction, Judge Newman reasons,

We cannot say it is an absolute impossibility for a person with his hands securely handcuffed behind his back to extract a substantial quantity of crack cocaine from his person or clothing and wedge it into the space where the quantity was found without leaving a trace of cocaine on his fingers or clothing, but we can say that the possibility of such an occurrence is so exceedingly remote that no jury could reasonably find beyond a reasonable doubt that it happened. The remote possibility 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.

 Judge Droney dissents, setting forth a few scenarios where Clark could have stashed away the cocaine when no one was looking as he sat in the police car with handcuffs on. During the pat-down before Clark was placed in the vehicle, the officer was not actually looking for drugs but weapons, given the nature of the 911 call that drew the police to the scene. Clark also had a few minutes to himself in the car while the police were doing other things. It would have been hard for Clark to pull this off while in handcuffs, but "the stakes for Clark were high" and the seat design would have allowed for this maneuver. Clark also could have discarded the baggie when no one was looking as the police took him from the car and walked him to the station. In addition, one of the officers testified that he had thoroughly checked behind and underneath the seat for contraband at the start of the shift, and had found nothing. "It was certainly reasonable for the jury to conclude from this testimony that Clark was the only possible source of the cocaine," Judge Droney writes.