A downtown grocery store suffered so much theft that they hired a private security guard to wander the aisles in plain clothes and collar shoplifters. He was an older man and not well-trained for the task at hand. The local prosecution office, where I was an assistant state attorney, received a lot of cases from the market and it wasn’t long before their “security guard” had a reputation in our office as a terrible witness. He was short on details, his memory wasn’t great, and he made a poor impression personally. As usually happened in cases of this nature, however, most defendants either plead guilty or failed to appear, in which case the judge simply issued a warrant.
My case involved a young black guy caught by the store guard stuffing something into his pocket and trying to leave without paying for it. His attorney said it looked like it would have to be a trial and so I called in the store security guard. He arrived with his little grandson, of all things. I guess he wanted to show the kid how the court system worked. Perhaps he was going to show off for the boy, who knows. He got a little different experience than he bargained for.

We were in the courthouse corridor just outside the courtroom. As usual, it had been a few months since the event in question. I asked my witness if he could identify the defendant. He assured me that he could. Now, normally, on the witness stand, it is pretty easy for a witness to accomplish this: the defendant is obvious sitting with his lawyer at the defense table. But I had my doubts about this store guard and wanted to test him. I knew that the defendant was sitting about 25 feet away in the hallway. There were a number of other defendants loitering there as well, plus some friends, relatives, etc. Most of them were black.

Walk down there, I instructed him, look those people over, then come back and tell me which one is the defendant in our case. He did as I asked. I could tell by the expression on his face as he returned that it was no go. He had no idea which one was our defendant. I told him he could go and subsequently dropped the charge in open court.

Perhaps this is a good point at which to mention the difference between two terms often confused: INNOCENT means he didn’t do it; NOT GUILTY means they can’t prove it.