The junior prosecutor opened the door, and a Florida state trooper escorted the witness into the room.
By law, everything presented to a grand jury is eventually disclosed to the defense, and it was usually Beckham’s strategy to present just enough evidence to secure an indictment—in other words, only the truly essential witnesses. In some cases, however, it made sense to call a nonessential witness just to see how he performed on the witness stand. Better that he fall on his face in front of a grand jury than before the real jury at trial. That was the case with Simon Radler, owner of Tactical Guns & Ammo in Jupiter, Florida.
“Mr. Radler, how long have you owned your gun shop?” asked Beckham.
“Forty-eight years,” Radler said in a strong voice. His weathered skin and his beard the color of driftwood made it no surprise to hear how old he was, yet his solid physique and crusty demeanor would have made much younger men afraid to mess with him. Beckham had seen other men shrink in the witness stand. Radler sat tall on the hardwood chair, like the captain of a ship, his tattoos swelling as he folded his forearms across his chest.
“What kind of weapons do you sell?”
“All kinds.”
“Do you sell semiautomatic firearms?”
“Of course.”
“Pistols?”
“Yes.”
“Rifles?”
“Yup.”
“Are you familiar with a semiautomatic rifle known as the AR-15?”
“I am. I own one myself. I take it to the Everglades for target shooting. It’s a lot of fun. Arguably the most fun sporting rifle in America.”
“Tell the grand jurors a little more about the AR-15.”
Radler turned in the chair to face the grand jurors more directly. “First thing you need to know is that ‘AR’ does not stand for ‘assault rifle.’ It stands for Armalite Rifle. The first ones were made by Colt, and Colt still owns the AR-15 trademark. So, technically speaking, if the rifle is made by a manufacturer other than Colt, it’s an AR-15–style rifle. Not an AR-15.”
“Understood. Are all AR-15–style rifles alike?”
“Nope. You got your standard full-size rifles with 20-inch barrels, short carbine-length models with 16-inch barrels, long-range target models with 24-inch barrels, and so on. Even more different calibers. Depends on the manufacturer.”
“Tell me how the AR-15–style rifle performs.”
“It’s semiautomatic, not fully automatic. That means to fire a round, you have to pull the trigger. It’s not a machine gun or tommy gun like the old Chicago gangsters used in the St. Valentine’s Day Massacre.”
“But they have been used in mass shootings, correct?”
“I knew you’d bring that up. Yeah, some very sick people have misused the AR-15 and AR-15–style rifles.”
“The AR-15 was used in the Aurora movie theater shooting that killed twelve people in Colorado, right?”
“I believe so.”
“In the Sandy Hook school shooting that killed twenty first-grade students and six teachers and staff in Connecticut?”
“Yes.”
“The AR-15 was the weapon of choice for the husband-and-wife terrorist attack that killed fourteen people in San Bernardino, California. The murder of twenty-six victims at the First Baptist Church in Sutherland Springs, Texas. The massacre of fifty-eight concertgoers in Las Vegas. Am I right?”
“Like I said: It has been misused by very sick people.”
“Closer to home, the AR-15 was used in the Parkland shooting that left seventeen students and teachers dead at Marjorie Stoneman Douglas High School. Right?”
“Same answer.”
Beckham flashed a photograph on the screen for the witness and jurors. “Let me state for the record that I am displaying the defendant’s headshot from his Florida driver’s license. Mr. Radler, have you ever seen this man before?”
“Yeah. I have.”
“When?”
“About a month ago. He came into my store.”
“Let me tell you, sir, that Mr. Khoury’s house was in Coral Gables. How far is that from your store in Jupiter?”
“About a two-hour drive.”
“So Mr. Khoury drove for two hours to your shop for what? Was he looking to buy something?”
“He said he was interested in a rifle.”
“What kind of rifle?”
“An AR-15.”
“What did you tell him?”
“He looked kind of young. So I asked if he was twenty-one years old. That’s the minimum age now in Florida to buy an AR-15–style rifle. He said he was still a teenager.”
“Did you sell him the rifle?”
“No,” Radler said, annoyed by the question. “All our sales comply with the law.”
“Thank you, Mr. Radler. Those are all the questions I have.”
Radler rose, but the prosecutor halted him.
“Just a second, Mr. Radler. A grand jury proceeding is different than a trial. The grand jurors can ask questions. So let me turn it over to these fine ladies and gentlemen to see if there’s anything they would like to ask.”
A juror in the back row raised her hand, and Beckham acknowledged her.
“I’d like to know if Mr. Radler asked Mr. Khoury why he wanted the AR-15.”
“I didn’t ask him,” said Radler.
A woman in the front row spoke up. “Did you call the police?”
“Excuse me?”
“A high school student who looks like an Arab drove all the way from Miami-Dade County to buy an assault rifle. Did you call the police?”
Beckham interrupted. “First of all, let’s be clear that Mr. Khoury is an American citizen born in this country.”
“No, first of all, let me reiterate that this is not an assault rifle,” said the witness. “Second of all, I bought my first AR-15 when I was eighteen years old. I’ve never even aimed it in the general direction of another human being, let alone used it in a mass shooting.”
The grand juror didn’t seem satisfied. “So the answer is no, you didn’t call the police?”
“If I had, I probably would’ve been sued by the ACLU and put out of business for discriminating against Muslims.”
The room fell silent. Another juror spoke up, a man. “When he was in your store, did he tell you his name?”
“No. Or maybe it was on his driver’s license. I don’t remember. I didn’t remember hardly nothing about this until Mr. Beckham showed me his picture and said it was Xavier Khoury.”
Beckham interjected. “Just to clarify: I didn’t tell you that Xavier Khoury went to your store.”
“Well, maybe not in so many words. You showed me a copy of his driver’s license with his picture and his name on it, told me he was charged in the school shooting, and asked ‘Could this be the guy who came into your store?’ I said it could be.”
The same grand juror followed up. “How sure are you that it was Xavier Khoury who visited your store? Ninety percent sure? Seventy-five percent?”
“I can’t put a percentage on it. I run one of the biggest operations in South Florida. On a typical weekend, over a thousand people come into my store. This was over a month ago, at least. In hindsight, it makes sense that it would be him, now that we know he shot up his school. It could be him. That’s what I’m telling you.”
“Thank you very much, Mr. Radler,” said the prosecutor, shutting it down. Beckham was glad he’d taken this witness for a little test-drive before trial. Mr. Radler wouldn’t be back.
Radler showed himself to the exit, the door closed behind him, and the junior prosecutor locked it. With a push of a button on the remote control, Beckham darkened the on-screen image of the defendant and queued up the next item. It was the powerful simulation of the shooting that the tech team had prepared—the same one Detective Vega had shown to Swyteck on the school tour.
“Ladies and gentlemen,” the prosecutor said in a solemn voice. “Before you retire for your deliberations, there is one more thing I wo
uld like you to see.”
Jack walked into the clerk’s office on the ground floor of the criminal courthouse, affixed his signature to his motion to withdraw as defense counsel for Xavier Khoury, and slid it across the counter to the intake clerk. She thumbed through the pages, cocked her head, and raised an eyebrow at Jack.
“This one’ll be in the news,” she said.
“I suppose,” said Jack.
He could have filed it online, but there was something therapeutic about handing the paper motion to a human being, watching her log it into the docket, and walking out with a file-stamped copy in hand. It felt final. But it wasn’t. He was still Xavier’s lawyer until the judge granted the motion to withdraw, which was not a given in a capital case. Until then, it was still Jack’s mission to persuade the prosecutor to back away from the death penalty—to convince Abe Beckham that the best result was a guilty plea, life without parole, and no trial.
To that end, Jack took a seat on a wood bench outside the grand jury room and waited.
The prosecutor was the only lawyer allowed inside the grand jury room, but the hallway was fair game for other members of the bar. Defense lawyers and even members of the media sometimes parked themselves near the entrance door just to see which witnesses the prosecutor was summoning. This time, Jack had come only to talk to Beckham, and he sprang from his slumber on the bench the instant the door opened.
“Abe, you got a minute?” asked Jack.
Beckham sent his assistant along to the elevator without him and walked toward Jack. They were alone in the long corridor, standing in the shadow of a curiously situated support pillar that blocked the window and the midmorning sunshine.
“What’s on your mind, Jack?”
“I don’t know how close you are to an indictment, but I wanted to give you a heads-up that I may ask you to present exculpatory evidence to the grand jury.”
“You can ask, but you know I’m under no obligation to present it.”
That was the law, and Jack was all too aware of it. A defense lawyer could show up with a truckload of evidence that his client was innocent, and the prosecutor could simply refuse delivery. “I hope you’ll at least consider it,” said Jack.
“Is this what I’ve seen in the media the last couple of days—students who saw Xavier mixed in with other students during the evacuation? I don’t consider that exculpatory at all. That’s exactly what the Parkland shooter did to slip through the police perimeter and head over to McDonald’s for a burger and fries after a hard day’s work.”
“That’s not what I’m talking about. We may have an alibi witness.”
Beckham showed surprise, probably more than he would have liked. “An alibi? Really? Who?”
“I’m not prepared to say just yet. I’m here to ask you to slow down the train for a day or two. I’d like to gather my facts and offer this evidence to you in a reliable way. Then you can decide whether to present it to the grand jury.”
“Delay, delay, delay,” said Beckham, groaning. “That’s the game you defense lawyers always play—until your client is convicted. Then you file an appeal arguing that I violated your client’s constitutional right to a speedy trial. I’m not slowing down. I’m getting my indictment on fourteen counts of first-degree murder today, we’re going to trial as soon as possible, and I’m seeking the death penalty.”
“That’s what I thought you’d say. I understand. Go ahead and announce the indictment. But throw me this bone, will you? Do not make a public announcement that you are seeking the death penalty.”
“It’s already out there. I’ve been talking about the death penalty since the arrest.”
“Talking, yes,” said Jack. “Up until this point, I think it’s fair to say that the State Attorney’s Office has rejected any request by the defense to take the death penalty off the table. Once you have the indictment in hand and make a formal announcement that you are seeking death, that’s a game changer. Politically, it’s almost impossible for the state attorney to back away from it in a case like this. So wait a week. Wait a day. Just wait.”
Abe didn’t answer right away. “I’ll consider it,” he said finally.
“Thank you,” said Jack.
They walked toward the elevator together, but before Jack could push the call button, the bell rang and the chrome doors parted. A gaggle of reporters spilled out of the crowded elevator, and from the looks on their faces, they smelled a breaking development in the case. Jack suspected that Beckham’s assistant had put the word out that an indictment was imminent.
“Mr. Beckham!” they shouted. “Mr. Beckham!”
Within seconds the prosecutor was surrounded, the blinding media lamps were up, and the cameras were rolling. Jack watched and listened as the prosecutor spoke into the bouquet of microphones thrust toward his face.
“Let me say this,” said Beckham. “The state’s presentation of evidence is complete. It is now up to the grand jury.”
A reporter pushed forward. “Mr. Beckham, if the grand jury returns an indictment for first-degree murder, will you be seeking the death penalty?”
“Without question,” said Beckham, looking straight into the nearest camera. “As I’ve said all along, this is a capital case if ever there was one. Thank you all very much.”
He broke away from the crowd and headed for the stairwell instead of the elevator, walking right past Jack on the way.
“Thanks for considering my request,” said Jack, and he let the prosecutor go up the stairwell alone.
Chapter 20
The package from Abe Beckham landed in Jack’s office the next morning.
Federal law referred to it as “Jencks material,” so named for the 1957 Supreme Court case that defined the government’s initial disclosure requirements in a criminal case. Florida has similar rules, and it was the defense team’s first look at the evidence presented to the grand jury. The government was also required to turn over evidence that wasn’t presented to the grand jury and that could help the defense. Potentially, it was like Christmas morning; more realistically, like Christmas morning for the kid whose parents didn’t get to the store in time to buy the hot new toy. Nonetheless, you open the package, hoping.
“How can I help?” asked Hannah.
They were in the kitchen, the one room in the old house that Jack had left exactly the way it was after Hannah’s father passed away. When Jack was a newbie at the Freedom Institute, the vintage-sixties kitchen was not only where lawyers and staff ate their bagged lunches, but it also served as the main (and only) conference room. Hanging on the wall over the old Joe DiMaggio Mr. Coffee machine was the same framed photograph of Bobby Kennedy that had once hung in Neil’s dorm room at Harvard. Jack loved that Hannah was filling his shoes.
Jack gave a quick once-over to the stack of banker boxes on the Formica countertop. There would be hours of work ahead of him—if he stayed on the case.
“Let’s give it a day or two. See how this plays out.”
“See how what plays out?”
Jack had told her about his motion, but Hannah obviously had not given up hope that Jack would change his mind. She was already tearing off box tops, looking for something that piqued her interest and expertise. “What’s the name of their fingerprint expert?” she asked, flipping through the printed transcript. “I’ll start there.”
“Granger, I think,” said Jack.
“I’m curious to read his testimony about the extended magazines.”
“There were five of them,” said Jack. “Thirty rounds apiece.”
“What I’m asking is whether Xavier’s fingerprints were found on the extended magazines. It’s no big deal if his prints are on the gun. His father owned it for twenty years, and he told you he taught his son how to use it, right?”
“Right.”
“So we can explain the gun. But if Xavier’s fingerprints were found on the extended magazines, that’s not so easy to explain. Unless he’s the shooter.”
“Good poi
nt,” said Jack. “I don’t know if they’re on the magazines.”
“That’s why I’m looking.”
Jack’s assistant knocked on the doorframe. “You have a call from Judge Martinez’s chambers,” said Bonnie.
Jack excused himself, went to his office, and picked up the phone on his desk. The judge’s assistant was on the line.
“Judge Martinez has scheduled a hearing at four p.m. on your motion to withdraw. Can you please confirm your availability?”
“Yes, I’m available.”
“The hearing will be in chambers, not in the courtroom. The judge has granted the request that the hearing be closed to the public.”
“I’m sorry, I didn’t make that request.”
“Ms. Gonzalez did,” said the assistant.
“Who?”
“Sylvia Gonzalez. She’s an attorney with the National Security Division of the United States Department of Justice. They are opposing your motion to withdraw as counsel.”
“Excuse me?”
“That’s all I know, sir. Can I tell Judge Martinez you will be here at four o’clock?”
“Yes,” said Jack, puzzled. “I’ll definitely be there.”
Andie was in the field office, working through lunch at her desk, when security called from the main lobby. “Agent Henning, there’s a Molly Khoury here to see you.”
Her empty stomach filled with pangs of guilt. Andie had always thought of herself as a compassionate person. But Molly was complicated territory. “I’ll come down,” she said into the phone.
Andie rode the elevator down alone, fairly certain that she knew what this was about. She’d told Jack that he didn’t have to withdraw as counsel, but she was happy with his decision. Molly, no doubt, was not.
The elevator doors opened to the lobby, and Andie found Molly seated on the vinyl couch near the window. Molly rose and greeted her with a pained expression. “I’m so sorry, Andie.”
They took a seat on the couch. “Sorry about what?”
“The lawsuit. I heard you got sued.”
“No need to apologize,” said Andie. “I don’t see that as your fault.”
“As soon as I heard, I had to come and see you. I want to do the right thing.”
Twenty Page 12
