by Kenneth Eade
“How many believe that the police should treat African Americans differently than Caucasians?”
There were no hands: an obvious product of “political correctness.” Brent zeroed in, one by one, on the potential jurors who had shown their hands.
“Prospective Juror No. 4, Mr. Brandon: why do you believe that you must obey an officer’s commands without question?”
“Because, the police are there to keep us safe.”
“If the judge instructs you that you need not obey a police officer’s commands if the police officer is acting illegally, would that change your mind about blind obedience?”
“Objection,” said Taylor. “No such instruction has been agreed upon.”
“It’s true we haven’t discussed instructions, but this is voir dire. I will allow it,” said the Judge.
“I just think, in general, that it’s not a wise decision to argue with someone who has authority over you. And it's even worse to argue with someone who has a gun.”
There was some laughter among the gallery as Brent continued.
“How many of you are aware of the shooting of Michael Brown in Missouri?”
Half of the panel raised their hands.
“And how many of you think that the officer in that case was justified in shooting Michael Brown?”
Three hands shot up and Brent noted them. At this rate, he would exhaust his 20 challenges faster than he had anticipated. As the questioning continued, both Taylor and Brent alternatively evicted their least favorites from the jury panel, and the seats were filled by more undesirable candidates; kind of like a presidential election. The lack of African Americans on the panel made Brent sway towards trying to keep as many women on the jury as possible.
Finally, by the end of the day, neither side had any more challenges to make and, as a result, a jury of seven white women and five white men was sworn in. William’s peers were ready to sit in judgment.
CHAPTER TWENTY SEVEN
Brent took an early dinner after court and drove home to grab several fresh changes of clothes. His night detective work required him to cut out the commute to and from Santa Barbara. Opening statements started tomorrow, and there would be no time to wait for the subpoenaed records and police reports. He needed answers and he needed them now.
It was already dark by the time Brent checked in to his new home away from home and went about the business of sleuthing. Charlotte Rutherford (aka 'Trixy') had not shown up in response to her subpoena, so Brent had to assume that either Jack didn’t get a chance to serve her or that she just ignored it. Either way, she was his starting point.
Using the notes that Jack provided him, Brent bothered every one of the Starlight Motel residents; but none of them turned out to be Trixy and, of course, none of them had anything to say. He canvassed every hooker motel in the area, feeling more like a door-to-door salesman for an adult book store or a porno casting agent than an investigator. He expanded his investigation to local residences in the vicinity in order to determine where Jack had been at the time of the attack.
Conducting an investigation is like a series of job interviews. Getting the door slammed in your face at every attempt wasn’t the exciting life of the detective portrayed on film or television. Brent wondered why Jack liked it so much. He looked at his watch – eleven p.m. Kind of late to be knocking on doors – one more.
Brent rapped on the door and the porch light came on.
“Who is it?” said the muffled male voice on the other side of the door.
“Brent Marks. I’m investigating a murder.”
“Put your badge up where I can see it.”
“I’m a lawyer. Here’s my bar card,” said Brent, holding up his ID
The door opened and a middle-aged man in blue jeans and a white T-shirt stood in the doorway with one hand on the door and the other in his pocket.
“It’s pretty late,” he said.
“I’m sorry, sir, but it’s very important. My investigator was beaten pretty badly in this area and he’s in a coma. I’m trying to…”
“Yeah, yeah, my son found him out back, in the alley.”
“Your son? May I speak to him?”
“He’s supposed to be getting ready for bed, but I’m sure he’s still playing video games. Come on in.”
Brent entered the humble residence, which was old but clean and smelled like an old book.
“Have a seat.”
Brent sat down at a built-in table between the kitchen and living room. The kitchen light was on, but the living room was dark, illuminated by the glow of the eleven o’clock news. A plump woman in a bathrobe came up to Brent.
“Hello. Can I get you something to drink?”
“Hello, ma’am. Yes, water would be great.”
The lady got a plastic cup out of the closet, filled it with tap water, and held it out to Brent.
“Here you go.”
The man returned with a teenaged boy who was wearing shorts and a T-shirt and had his head bowed in reverence to his iPhone, his eyes glued to the screen and his fingers clicking away.
“Put that thing down,” said the man. “This is Mr…?”
“Marks. Brent Marks.”
“Mr. Marks wants to talk to you about the guy you found out back in the alley.”
The boy, Jason Tremble, reluctantly slipped his phone into his pocket with a look of impatience and sat down next to Brent at the kitchen counter table. He looked up at Brent with curious, chocolate eyes.
“You a cop?”
“No, I’m a lawyer. The man you found was my investigator. Can you tell me about it?”
The boy recounted how he had found Jack in the alley among the trash cans behind his house, but he didn’t see anything other than Jack, and he didn’t hear anything, because he had just come from inside to take out the garbage. Brent thanked the family, left, and went behind their house to the alley. A couple of cats darted away as he approached; one jumping over a wall and the other ducking behind an old TV stand that had been put out to pasture. As he stood there looking at a hodgepodge of plastic and metal garbage cans in the crisp cold air, which smelled like dead fish, he asked out loud: “What were you doing here, buddy?”
CHAPTER TWENTY EIGHT
The first order of business in the trial was the attorneys’ opening statements. This would be the only time the lawyers had a chance to speak to the jury directly before the end of the trial, when they would give their closing arguments. For the opening statements, they were not allowed to argue their position; only summarize what they expected the witnesses and the physical evidence to present during the trial.
A trial is an infallible process. It has often been described as a way to find the truth; but in reality, that was an impossibility. The truth is not contained within the fingerprints on a gun or even the memory of an eyewitness. Memories are not recordings stored in your head. They are constructed from many parts of the brain, and even recalling the simplest thing is a complex task for it to do.
Because of the brain’s tendency to create, organize, and make sense of things, the imagination often plays a part in memory, with the brain filling in the “blanks” of a particular memory with facts that make sense, but may not necessarily have happened. That is why three people who witnessed the same thing will tell three very convincing but very different stories. It doesn’t make the memory any less real, and people are usually convinced of their brain’s version of the story.
A trial is kind of like a TV game show where the contestants, or witnesses, tell their stories and a group of judges decide who wins and who gets “kicked out.” As imperfect as it was, this was the game show that would decide the fate of William Thomas.
Benjamin Taylor had the honor of having the first and the last word in the trial, so he took the lectern in front of the jury box first to begin his statement. Taylor was handsomely dressed in a grey suit with a light blue shirt and dark blue tie. He delivered his speech with the confidence and style of a first-r
ate orator, without legalese and in a manner calculated to implant an outline in the jury’s collective head of his version of the case.
The old adage “You never get a second chance to make a first impression” is true in a jury trial over anything else. Taylor put on his best genuine smile when he took the podium and looked eye-to-eye with each and every juror as he made his speech. This would be the first time they would hear about the facts of the case, and he aimed to indelibly burn his version into their skulls.
“Ladies and gentlemen of the jury: this is a very simple case. You will hear Officer John Albright testify that he and his partner, David Shermer, stopped the defendant’s car late at night on Burbank Boulevard due to suspicious and possibly criminal activity. The defendant’s two companions were detained for urinating in public and the defendant was detained due to having an open container of alcohol in his car, and suspicion of driving under the influence of alcohol.
“Officer Albright will testify that during the routine field tests he attempted to administer to the defendant to determine if he was, indeed, under the influence of alcohol, the defendant became belligerent and refused to follow instructions. Then the defendant attempted to take Officer Albright’s baton, which posed a risk to the officer’s safety and the safety of his partner. Officer Albright succeeded in getting the baton back and, for his safety and the safety of Officer Shermer, he struck the defendant in the knee with his baton to avoid a further violent confrontation.
“But this was not enough for the defendant; no!”
“Objection, Your Honor: counsel is arguing.”
It was a risk Brent took, making an objection during an opening statement, as the jury could get the impression he was being sneaky or unfair and trying to interrupt his opponent's train of thought.
“Sustained. The jury will disregard the last sentence of the People’s opening statement.”
The risk paid off. Of course, the jury couldn’t erase what they heard, but they knew that Taylor had ventured out of bounds. They just didn’t know why.
Taylor, undaunted, continued: “Officer Albright will testify that the defendant continued to struggle with the officer’s attempts to subdue him and, in the struggle, the defendant attempted to (and did) put his hands on Officer Albright’s pistol, and fired it, resulting in the death of Officer Shermer.”
The men and women of the jury were alert and taking notes as Taylor continued his statement.
“The People will call a fingerprint expert, who will testify that the defendant’s fingerprints were on Officer Albright’s gun. We will further call a weapons expert who will testify that, in his expert opinion, Officer Albright’s gun had been tampered with.”
Taylor went on to tell the jury, in a very simple way, what evidence he intended to present; as if he were telling the jury a story. He concluded his statement with: “After you have heard all the evidence here in court that I have just described to you, the People are going to ask you to render your verdict that William Thomas…” Taylor paused and pointed an accusatory finger at William “William Thomas, the defendant, is guilty of capital murder.”
As much as Brent didn’t want Taylor’s opening statement to sit and gel in the jurors’ minds for an hour and a half during the break without a rebuttal from him, Taylor had calculated his speech to end exactly at 12 p.m., and the Court recessed for lunch. Even though they were cautioned that an opening statement was not evidence, Brent fully expected that Taylor’s words would become petrified in the jurors’ minds, and he would have the arduous task of convincing them that William was not guilty. Law or no law, the burden of proof, which once had rested on the People, had shifted to the Defendant.
* * *
After the lunch break was over and everyone had returned to Court, Brent was invited to the podium to give his presentation. He stood there at the lectern, looking at the jury, and kept his eyes focused on them during the entire speech. He was dressed in a navy blue suit with a teleprompter blue shirt and dark blue tie. It looked as if he and Taylor had been dressed by the same mother.
“Ladies and Gentlemen, I represent the defendant, William Thomas. As you’ve all been instructed by the judge: neither I nor Mr. Thomas has to prove anything to you in this case. The People have the sole burden to convince you, beyond a reasonable doubt, of every element of the crime of which my client stands accused.
“That means that Mr. Thomas does not have to say anything or do anything in his defense. The entire case rests upon the quality, or lack thereof, of the evidence that the People present. You shouldn’t expect myself or Mr. Thomas to explain anything about the evidence. You and you alone bear the burden of weighing and examining each and every piece of evidence and all the witnesses’ testimony to decide if it supports every element of the crime of capital murder.
“I disagree with Mr. Taylor that this is a simple case. It’s a very difficult case, and your job is the most difficult of any of us in this room. You’ve all heard that there are two sides to every story. Well, given the infallible nature of human beings, there may be many, many sides to the same story. People have different perceptions of what they have seen or heard, and the physical evidence may lead to many different conclusions or inferences.
“The judge will instruct you that William Thomas was not obliged to follow every instruction of John Albright with a smile on his face. The law says that if a police officer is acting illegally, you don’t have to blindly do what he says.
“You will hear evidence from a firearms and ballistics expert, called by the defense, that it is not possible from an examination of the gun to determine who shot the fatal shot that killed David Shermer. You will hear the People’s own fingerprint expert testify that it is impossible to determine from the fingerprints whether John Albright or William Thomas pulled the trigger. You will hear the testimony of an accident reconstruction expert, who will conclude that Officer Albright’s version of the struggle with Mr. Thomas could not have happened the way he will say it did.
“You will hear the testimony of William’s two friends, eyewitnesses who were passengers in his car, who will testify that William was already on the ground and that Officer Albright was sitting on top of his chest when he pulled his weapon out, pointed it at William’s face, and said: ‘Nigger, your momma is not going to recognize you at your funeral.’
“Finally, you will hear the testimony of an expert who will show you an enhanced video of portions of the incident, and you will clearly see from the video that, at the time Albright pulled his gun and pointed it at William, his handcuffs were still locked away in his belt.
“After hearing and considering all of this evidence, ladies and gentlemen, I am confident that you will find that the People cannot prove every element of capital murder against William beyond a reasonable doubt; which means that, under the law, you must acquit him.”
CHAPTER TWENTY NINE
It was the first day of testimony, and Brent had a client with no memory, a hot lead gone cold due to an unconscious investigator, a tough-on-crime judge, and a prosecutor bent on sending William to death row to achieve his political aspirations. The odds seemed better in Las Vegas.
Benjamin Taylor put his strongest foot forward and called Detective Daniel Salerno as his first witness, who expertly described the physical evidence found at the scene. Dressed in classic beige slacks and a brown blazer, Detective Salerno had a no-nonsense, professional air about him. He was straight out of an episode of Law & Order, and spoke to the jury with the skill of a professional storyteller, training his grey eyes on them as he testified.
Taylor was smart to put on the strongest part of his case (and the best witnesses) while the members of the jury were still paying half attention to what was going on in court and less of what was on their grocery shopping lists, how their favorite ball teams were doing, what shows they were missing on TV, or what was going on at work. They could focus their thinking on these more important subjects when they had already made up their minds whe
ther William was guilty or not, which would probably be about halfway through the case, if not sooner.
As the first detective to arrive that night, Salerno described a crime scene professionally secured, the careful retrieval of Officer Albright’s gun (which he had personally found in the bushes), and the state of inebriation of TJ and Fenton, who had blood alcohol levels of .16 and .18, respectively and had both pleaded guilty to charges of being drunk in public as well as public urination. In the first hour of testimony of the first prosecution witness, Brent’s only eyewitnesses had been sufficiently discredited.
“Detective Salerno, you understand the distinction between ‘under the influence of alcohol’ and ‘drunk,’ do you not?” Taylor postulated.
“Objection: calls for a legal conclusion,” Brent interjected.
“Overruled: this witness has been qualified as an expert. Please answer the question.”
“I do.”
“Please explain your understanding of the difference.”
“'Under the influence of alcohol' is a term used to describe the state of being after a subject has consumed enough alcohol to alter his judgment and motor skills so that operating a motor vehicle or machinery would be unsafe to himself and possibly others.
“'Drunk' is the state of intoxication which includes ‘under the influence,’ but goes further. It is the state of intoxication in which one loses control of one’s faculties and behavior.”
“As a result of your interview of Timothy Jones, how would you describe his condition?”
“Objection: lack of foundation.”
“Overruled.”
“Mr. Jones was drunk.”
“And upon which facts do you support that opinion?”
“My observation of his physical condition. He was unsteady on his feet, his eyes were watery and bloodshot, his speech was slurred, and he had a hard time keeping his balance when he spoke to me.”
