By Miranda Neubauer
“The defendant does not have the burden of proof, it’s the burden of the people to prove that a crime was committed and that I was the one who did it.”
So began the defense’s closing arguments in an unusual trial that concluded Monday in Brooklyn Supreme Court. The central figure in the trial, Neb Morrow, was in a dual role: defendant, charged with robbing a McDonald’s in Park Slope and defense attorney representing himself.
Presiding Judge Joel Goldberg, in an interview, said self-representation in such a criminal case is “very, very rare” and said it was the first time he was handling such a case in 23 years on the bench. “Usually I manage to talk them out of it,” he said, noting that in most cases “attorneys don’t even represent themselves”. Before allowing self-representation to proceed, Goldberg explained that the court had to ensure that the defendant understood the risks of such a choice.
Defendant Morrow was exercising his sixth Amendment right to represent himself, called a “pro se” defense in legal parlance. While he sometimes struggled to reconcile his duties as his own attorney with his personal interest in winning an acquittal, Morrow displayed a good grounding in courtroom conventions that ensured that his performance was far from amateur hour. As for the outcome? Read on.
He had experience: Morrow had previously represented himself in federal court. In that case which concluded in early November, a jury convicted him of a felony charge of interference with commerce by threat or violence in connection with robberies of Radio Shack stores in Brooklyn, Queens and Manhattan in summer of 2009.
Still Judge Goldberg saw the need to lay out the ground rules. “You have to sum up as an attorney, not as a witness,” Judge Goldberg had instructed Morrow on Monday just ahead of the summations, in which the prosecution and defense each summarize the evidence and makes its best argument, respectively, for conviction or acquittal. “You’re free to argue the evidence shows I’m telling the truth, but you can’t say I was telling the truth,” Goldberg told him.
Morrow was charged with first degree robbery of a McDonald’s restaurant on 4th Avenue in Park Slope on Oct. 13 of last year. The indictment alleged that Morrow had entered the establishment around 9 pm and pointed a gun at the manager and demanded money.
“You have to argue what the evidence shows, you can’t give personal opinion in the case,” Judge Goldberg told Morrow, who earlier in the trial had testified on his own behalf.
Evidence presented during the trial indicated that the individual entering the restaurant had obscured his face with his hand and a hood so that none of the store’s employees got a clear look at the suspect. According to the prosecution, the suspect left the store with two McDonald’s bags filled with the proceeds from two cash registers.
Police responded quickly and arrested Morrow a short distance from the crime scene after the manager, riding along with police, identified him walking in the street. Police said Morrow was in possession of the weapon and the McDonald’s bags containing $1,526, according to the prosecution.
Morrow was in control of his own defense throughout the trial, cross-examining prosecution witnesses and presenting his own argument for acquittal to the jury. Goldberg assigned a stand-by lawyer with whom Morrow could consult about legal questions and who could take over in the event he changed his mind about representing himself. A defendant does not have a federal or state right to hybrid representation.
From the start, Morrow sought to do justice to his dual roles as defendant and attorney, making an effort to show competency in legalese. Before the summation went under way, he made a motion alleging prosecutorial misconduct that violated his 14th and sixth Amendment rights.
He argued that the Assistant District Attorney had “intentionally withheld Brady and Giglio” material. Those terms refer to evidence favorable to the defense or unfavorable to the prosecution’s witnesses that the prosecution is required to turn over to the defense. Morrow alleged that the prosecution had not provided him with contact information for one witness, another employee at the McDonald’s, and that a second witness had become unreachable by phone after a conversation with the prosecution.
The McDonald's that Neb Morrow was charged with robbing. (Miranda Neubauer/The Brooklyn Ink)
He said he submitted “a request for a full acquittal since it’s obvious that this constitutional violation occurred in this courtroom, with the knowing intention of keeping me in the dark, knowing that I’m in the pro se defense, [withholding evidence until it is ] too late for me to do say or do anything about it.”
Judge Goldberg denied both requests.
When it came time for summations, he explained that Morrow had the option to sit either at the Defense table or at the podium to start his closing argument, adding quickly, when Morrow started to move, “when the jury comes in.”
Once the jurors were seated, Morrow began his defense argument, attempting to paint the prosecution’s remarks as extraneous and distracting.
“What the attorneys say is not evidence, what the witnesses say is evidence in the case,” he said. “Nothing that I’m saying right now is evidence in this case… In this case I took the stand and testified in my own behalf, everything I said on that stand is evidence in this case. [ADA] Hillary Schaeffer is going to say that some of things I said are not true, but what she says about what I said is not evidence.”
But when Morrow suggested that he would begin directly refuting the prosecution’s statements, Goldberg interrupted, cautioning him to “comment on the evidence, not what she said. “ Later, Schaeffer objected to an effort by Morrow to argue that that the prosecution could have called rebuttal witnesses. “The jury should not speculate about what people who didn’t testify would have said,” Judge Goldberg concurred.
Morrow’s major task was to refute the most damaging evidence about his arrest, allegedly in possession of the stolen money, and it was an uphill battle.
Morrow argued that the police had framed him when two other men had tossed the stolen goods near where he was walking.
Morrow also tried to raise doubts about his identification by police and the McDonald’s store manager. He emphasized that a police officer had indicated in his testimony that the officers had been searching for a suspect wearing a gray hoody, whereas he was wearing a black jacket.
“[What I was wearing] was black on the inside, and it’s jacket and it’s not sweatshirt type material, all of the witnesses testified that the individual had worn sweatshirt type material.” As Schaeffer objected, Judge Goldberg reiterated that it was the jury’s recollection that took precedence. “I’m not asking you to recollect, go to the record look it up,” Morrow continued, “all of this evidence clearly establishes that there is a reasonable doubt in this case to believe I committed this crime.”
While Morrow had used some of the exhibits showing his jacket in closing statement, Schaeffer showed footage from a security camera to illustrate the sequence of events, arguing that the “perpetrator was smart and the crime was well planned out.”
“The evidence is clear that an armed robbery was committed…The only issue for your consideration is who committed this robbery,” she continued.
“[The Manager] obviously does not get a good look at the perpetrator,” Schaeffer said, in discussing the footage. Judge Goldberg sustained an objection from Morrow with regard to the use of the word “obviously”. She added that his focus was also on the fact that “he’s got a gun in his face” and the suspect was saying “Give me the fucking money” and “Do you see the fucking gun in my hand?” Nevertheless, she said “He is able to give some descriptive information.”
Schaeffer noted that another one of the employees who had followed the suspect out of the McDonald’s had observed him in the dark. “Something that may be gray might appear black,” she said. When Morrow objected to that description, Judge Goldberg overruled him.
Schaeffer stated that Morrow had spent 18 years of his adult life in prison and that he lied to police about his identity in a 1991 arrest. “He will tell you what he needs to tell you, he [has an interest] to falsify, to exaggerate and to lie,” she said. “He does not take responsibility for this actions. [All he talks about] are all the people who have wronged him.”
At this point, Goldberg sustained an objection from Morrow, emphasizing that “character is not an issue, but credibility is.” Every defendant in a case is entitled to a day in court,” she concluded. “But that doesn’t mean you’re missing something, the case is simple and the evidence is overwhelming, now it’s time he be held accountable for his actions.”
An hour later, the jury indicated it had reached a verdict. “You have been a gentleman throughout the trial and I respect that,” Goldberg told Morrow before the jury came back.
The Jury foreman announced that the jury had found Morrow guilty of robbery in the first degree. Morrow asked that the jury be polled. One after another, the twelve jurors confirmed that, yes, this was their verdict.
Morrow has filed an appeal with regard to the federal case and remains in police custody awaiting sentencing in the state case. He could face between one to nine years in prison.
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