SALEM — At the start of every trial, jurors are told to “hearken to the evidence.”
But that wasn’t enough in a case pinned on the hope that jurors would recognize a suspect’s “jug ears” on a grainy surveillance video.
A Salem District Court judge yesterday concluded that since he couldn’t, the jury was also unlikely to be able to identify Justin Smith or his co-defendant, Curtis McDermott.
Judge Robert Brennan, in a rare move, opted to end the trial at the conclusion of the prosecution’s case by allowing a motion by the defense for a finding of “not guilty.”
Smith, 24, of 21 Essex St., and McDermott, 20, of 21 Harbor St., both in Salem, were charged along with Smith’s brother-in-law, Michael Politano Jr., 30, with burglarizing dozens of storage lockers last year at the Public Storage warehouse on Goodhue Street.
The thefts were discovered on the morning of April 24 by a manager shortly after she arrived for work.
She and police quickly identified Politano as a suspect, after noticing surveillance video of a box truck with Politano’s name emblazoned on the side. They later found nearly 150 items, including computers, appliances, bikes, a gas grill and space heaters, which they believed to have been taken from the 35 ransacked storage lockers in the facility.
Days before the thefts, Politano rented a storage unit there himself, a manager of the business testified yesterday. Shortly after that, he called the company, saying he was locked in because the place had closed for the night.
The company gave him a special code to activate the gate, which allowed him to get out, police say, but also would have allowed him to get back in a few nights later.
Politano, questioned by police, allegedly fingered Smith and McDermott, claiming that he didn’t know the stuff they were putting into the truck was stolen.
But because he potentially could incriminate himself if he took the stand, Politano didn’t testify at Smith and McDermott’s trial.
That left prosecutors with surveillance video showing three men inside the facility on the night of the thefts, all wearing gloves and with hooded sweatshirts pulled up over their faces, and earlier images of three men on the day Politano was renting the storage locker.
Prosecutor Lee Hiromoto, a third-year Harvard Law student interning at the district attorney’s office, urged jurors to look carefully as one of the hooded men briefly removed his hood, revealing his prominent ears. Look at the way the men in the two videos have similar gaits, he urged the jury.
Salem police Detective Dennis Gaudet told jurors yesterday that he’d known Smith for 10 years and immediately recognized his protruding ears, as well as his jutting chin and his walk; he leads with his neck, Gaudet testified.
The jury watched the videos on Wednesday afternoon and yesterday morning, along with the judge.
Then Brennan watched portions of the video from the night of the burglary again, after defense lawyers Peter Fogg, representing Smith, and Heidi Shore, representing McDermott, filed motions arguing that the prosecution hadn’t proved its case.
Brennan, unable to recognize the suspects on the video himself, agreed.
“No rational trier of fact could identify the suspects from this video,” Brennan concluded, finding the pair not guilty.
The jury that had been hearing the case since Wednesday afternoon was sent home, as was McDermott. Smith, who is facing separate drug charges, remains in custody.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at firstname.lastname@example.org or on Twitter @SNJulieManganis.