by Marcia Clark
The defense attorney was on his feet again. “Objection! Improper impeachment!”
But the judge waved him off. “Have a seat, Counsel. Maybe it is, and maybe it isn’t. But let’s cut to the chase, shall we? It’s just a preliminary hearing. No sense pussyfooting around.” The judge turned to the witness. “Did you tell the police this was the man who did the stabbing? Yes or no?”
The witness rubbed his soul patch, clearly torn. “Well…uh. Not exactly…Your…uh…Your Worship.”
“Just a simple Your Honor will do,” Judge Foster said. “Then what did you tell the police?”
“I just said I seen the dude,” he said, turning toward the defendant, a man named Yamaguchi. “He was, like, nearby, you know? But I din’t ever say I saw him, like, stab nobody, you know?”
Brandon Averill was red-faced. “Wait a minute, you mean you’re denying that you pointed out this defendant at the scene and told the cop that you saw him stab that guy?”
“Yuh…uh, yeah,” the witness said, casting a furtive look at the defendant. “I’m denying it.”
Brandon turned back to counsel table and shuffled through some papers as the courtroom again fell silent, waiting. Judge Foster had just opened his mouth to tell the prosecutor something he undoubtedly wouldn’t be happy to hear when Averill produced a report with a flourish and marched up to the witness stand.
“Isn’t that your name?” he asked, pointing to the top of the page. “Charlie Fern?”
The witness mouthed the words quietly. “Uh, yeah.”
“Then read this statement aloud for us,” the prosecutor demanded, pointing to a line on the page.
“Objection! Hearsay! What the cop wrote on that report is hearsay!” Schoenfeld shouted, again on his feet.
“It is,” the judge agreed. “Sustained.”
Brandon Averill’s mouth opened and closed without sound like a netted fish’s while he tried to grab hold of a thought. “It’s not admitted for the truth of the matter. It’s…uh, well, it’s offered to prove the witness’s state of mind.”
“And this witness’s state of mind is in issue because…?” Judge Foster asked, his tone sarcastic. “He’s here to identify the defendant as the stabber, true or false?”
“True, Your Honor. But I—,” Averill began.
The judge cut him off.
“There is no but, Counsel.” The judge’s merely annoyed tone of a few minutes ago had given way to truly pissed off. Of all the judges in the building, Brandon had picked the worst one to hear a case this weak, this poorly prepared. The only things Judge Foster hated more than unprepared lawyers were cases that were too thin to be in court. He’d called the district attorney’s filing unit more than once to “order” them not to file cases that couldn’t make it past a preliminary hearing. If a case wasn’t even strong enough to show probable cause, which boiled down to the standard of “more likely than not,” then it shouldn’t be in court, wasting his time.
Now he turned to Brandon Averill, his bushy brows pulled down, his voice ominously low. “Your eyewitness has denied making the statement attributed to him by the officer. If you want to get that statement into evidence, you’ll have to call the officer. This gentleman”—the judge gestured to Charlie Fern, who’d probably never been called that before in his life—“does not seem inclined to go along with the program.”
I could see the skin around Brandon Averill’s collar turn red. “Can I have a moment to call the investigating officer, Your Honor?”
“You may have exactly one minute, Counsel,” Judge Foster said, his voice beginning to rise. “In the meantime, I presume we’re finished with this witness? That is, unless defense counsel would like to try and change his mind?”
“No, thank you,” Walter Schoenfeld quickly replied. “No questions, Your Honor.”
The judge turned to Charlie Fern. “You’re excused, sir.”
Sir. I had a feeling this was yet another first for the redoubtable Mr. Fern.
I saw the bailiff, clerk, and court reporter brace themselves, having recognized the signs of an imminent eruption. Ordinarily I would’ve felt codependently nervous for the prosecutor, but Brandon Averill’s cavalier attitude had me actively rooting for an ass-kicking. I sat tall and suppressed a smile. How often in life do you get to see the right foot meet the right ass at kicking time?
Brandon walked quickly out of the courtroom, and when the door swung shut behind him, the entire place fell silent. Everyone looked away from the bench; eye contact might invite the judge to find a new focus for his palpably growing ire. Walter turned and whispered to his client, and the other waiting lawyers huddled and spoke softly among themselves. One minute ticked by, then two.
“Bailiff,” the judge intoned loudly, “please go and fetch our prosecutor.”
“Yes, Your Honor,” the bailiff said.
“And if he hesitates,” the judge added, “shoot to kill.”
The bailiff was smiling as he walked down the aisle, his rubber soles squeaking on the linoleum. Seconds later, he returned with Brandon in tow. The prosecutor was not smiling.
“Your Honor,” Brandon said, out of breath, “I need a recess to locate the officer.”
“No, Counsel, you may not have a recess,” the judge’s voice boomed.
The looks on the faces of Clerk Manny and the court reporter told me the festivities had begun. Manny grabbed the water glass he kept on the shelf above his desk, and the court reporter’s expression hardened as she prepared her fingers for flight.
“As you know very well, Counsel, the defense has a right to a continuous preliminary hearing. Do you see all these lawyers lined up here?” the judge shouted in his thunderous baritone.
Averill nodded. I noticed the tips of his ears redden, matching the skin above his shirt collar.
The judge continued, “I’ll be damned if I make an entire calendar cool its heels while you figure out where your witnesses are!”
Brandon touched the knot of his tie like a condemned man fingering his noose. “Perhaps the defense will waive the right to a continuous preliminary hearing so the court can take up the next case while I locate my witness?”
“Oh, indeed?” the judge replied acidly. “Let’s find out, shall we?” He turned to the defense. “Counsel, do you waive your right to a continuous preliminary hearing?”
“No, Your Honor,” said the attorney. “The defense does not waive.”
“Shocking,” the judge said. “Any other bright ideas, Mr. Prosecutor? Or, better yet, any other witnesses? Some incriminating evidence for a change?”
“I don’t have any other witnesses, Judge,” Brandon said, trying to regain his cool with a nonchalant shrug.
“People rest?”
“I suppose so.”
“I have a motion, Your Honor,” Schoenfeld said, beginning to rise.
“Don’t bother, Counsel,” the judge said, signaling him to sit down.
The judge banged his gavel and barked, “Dismissed.”
4
The spectators gave a collective gasp, then erupted in a buzz that built and rolled through the courtroom. The dismissal of a homicide wasn’t a typical day for even the most seasoned courtroom veterans.
The defendant, a wiry, lean, young Asian male with black shoulder-length hair, sat quietly at first, absorbing the shock. Then, all of a sudden, it seemed to hit him like a thunderclap. He thumped his fist on the table, the clanking of his waist-to-handcuff chains underscoring the gesture, and turned to his lawyer. “I told you! I told you it wasn’t me!”
Judge Foster gave another loud rap of his gavel, stopping the defendant in mid–fist pump. “This is a court of law, not a sports bar!” he thundered. “Get your client under control immediately, or I’ll do it for you!”
Walter grabbed Yamaguchi by the arm and whispered through gritted teeth. I couldn’t hear what he said, but it worked. The defendant folded his hands on the table and sat quietly.
Legally speaking, the dismissal
was well justified. But it rankled. Maybe this defendant really wasn’t the guy. And maybe I would’ve let it go at that if it hadn’t been for the “I could give a shit” look on Brandon’s face. Because maybe it was him, and the murderer was about to walk out of that courtroom and away from this victim for no good reason—just like everyone else had walked away while he bled out on the sidewalk.
I couldn’t just sit there and let it happen. For Cletus, and for all the others who wound up on the periphery of an overpopulated, uncaring world, I had to do something. I quickly moved up the aisle and walked over to Brandon.
“What the hell?” I whispered heatedly. “Where’s your cop? Did you subpoena him?”
Brandon glared at me wordlessly for a moment. “Of course I subpoenaed his ass,” he shot back.
“Then tell the court you’re going to refile so they don’t let this guy out,” I said as I watched the bailiff take the defendant back into the holding tank.
By law, the prosecution can refile a case that gets dismissed at the preliminary hearing, and we usually do if it’s been dismissed just because a witness didn’t show up. But the sheriffs don’t have bed space to waste. If Brandon didn’t tell them he intended to refile, the defendant would be released.
“You’re never going to find this defendant again,” I said heatedly. “He’ll be in the wind the minute they open the gate.”
Averill threw the last report into his file. “Tell me, since when does a Special Trials hotshot give a shit about some homeless guy?”
“Tell me, since when did it matter whether a victim drove a Mercedes or a shopping cart?” I fired back.
“Maybe since the ‘victim,’” he said, making air quotes—which I hate almost as much as I detest snotty prosecutors—“had just grabbed a lady and was probably going to rob her.”
“Based on?”
“Based on the fact that he was found holding a box cutter, and surprisingly we didn’t find any packing tape nearby.”
“But surprisingly he’s the only one who’s dead, and if someone killed him in self-defense, then how come they’re not around to say so?”
“You’re so fired up about this dog, why don’t you refile?” he said with a smirk. “Be nice to see one of you Special Trials hotshots get down in the muck with the rest of us.”
If he hadn’t been such a huge jerk, I might’ve taken a moment to think about whether there was any hope for this case. But as it was, he’d pissed me off so royally on so many levels that I didn’t pause for a second. I grabbed the file out of his hand and turned to the judge.
“Excuse me, Your Honor,” I said, loud enough to break through the courtroom chatter. “I’d like to notify the court that the People will be refiling the case of”—I paused to look at the file—“People versus Ronald Yamaguchi.”
Judge Foster raised an eyebrow. “I had no idea the Special Trials deputies were in the business of trolling for cases. Must be my lucky day,” he said dryly. “Deputy Stevenson,” he said, addressing the bailiff, “tell your folks not to rush. It appears Mr. Yamaguchi will be staying with us a little longer.”
The bailiff nodded and picked up the phone on his desk.
“And I have the next case, Your Honor,” I said, setting down the murder book—the binder cops put together that holds all the reports on a murder case—on counsel table with a heavy thump.
“You ready?” the judge asked.
“I am,” I replied.
“But I’m not, Your Honor. Sam Zucker for the defendant.” He was a really young, slick-haired type in a chocolate-brown pin-striped suit that said wowee-look-at-me-I’m-a-lawyer. “I’m standing in for Newt Hamilton, who’s got the flu. We’ll be asking for two weeks—or more if the People want.”
Since Newt Hamilton had been privately retained, I had the feeling the onset of his “flu” might be related to the defendant’s lack of cash. I knew the judge wouldn’t force a stand-in to go forward on a murder case, so I didn’t bother to object. We quickly picked a new date, and as the judge called the next case, I saw a detective come barreling in, his eyes on fire and his jaw working sideways. He headed straight for the clerk’s desk.
“Detective Stoner, investigating officer on the Yamaguchi case.” He pulled out his badge and handed Manny his card. “I just heard the case got dismissed,” he said, his voice tight with barely restrained fury.
Manny, who’d had enough fury for one day, quickly pointed to me. “Yeah, but she’s refiling.”
Thanks, Manny. The detective turned to look at me, steam blowing out of his ears. I motioned for him to meet me out in the hallway and braced myself for the nuclear blast. He nodded curtly, turned on his heel, and headed for the door in rapid, angry strides. Although I was closer to the exit, he moved so fast he got there ten steps ahead of me.
I found the detective out in the hallway and walked over to introduce myself. “Hi, I’m Rachel Knight. Guess I’ll be handling the case—,” I began.
The detective turned toward me, but before he could respond, his attention was drawn to a point over my left shoulder. His eyes narrowed and his chest filled. “Excuse me,” he said roughly, and marched past me.
I turned to see where he was headed, and there was Brandon, sauntering out of the snack bar, carrying—what else?—a cinnamon-covered latte.
Detective Stoner flew at him like a heat-seeking missile. “Why the hell didn’t you give me a subpoena for the uniform?”
Brandon had enough sense to blanch, but not enough to back down. He took exactly one second to find his voice. “I did. I sent it over. You just never picked it up. You blew it, Stoner, so don’t try to blame me for your fuckup.”
“You never sent anything over, you dumb punk! And I can prove it! The subpoena records show nothing was ever issued for the uniform!”
“Yeah? And who controls those records?” Brandon said in a grating voice that’d probably set people’s teeth grinding since he was in kindergarten. “Oh, that’s right, you guys.”
Everyone has a breaking point. Brandon had just found Stoner’s.
The detective pulled back his right fist with a vengeance that would’ve knocked Brandon into his next life if he hadn’t flinched just in time. The potentially lethal blow glanced off Brandon’s left shoulder. Even so, the force was enough to send him and his latte flying. Stoner’s momentum carried him forward, knocking them both to the floor. The detective seized the opportunity to land a solid punch to the kidney.
Brandon managed a strangled “Help!”
I wasn’t strong enough to break up the fight if I’d wanted to—though I admit I didn’t mind having an excuse to stand by and let Averill get what he so richly deserved. But there were about twenty cops standing around at the time who were more than capable of taking control. They gave Stoner at least a solid minute before stepping in. I made a mental note to get all of their names. I wanted to personally write them thank-you cards.
It took three of them to pull Stoner off, and when they yanked Brandon to his feet, still dripping with the remains of his latte, he couldn’t straighten up. But did that stop him from yapping? Holding his side with one hand and the wall with another, he went off: “I want that asshole arrested! He attacked me! You all saw it!”
We glanced at one another blankly. Nobody moved. Stoner looked Brandon over with hooded eyes, then, cool as a cucumber, flipped open his cell phone and called for the paramedics.
After they’d carted Brandon off to get checked for any possible major damage, I turned to Stoner.
“Want to try again?” I said, extending my hand. “I’m Rachel Knight.”
“Stoner,” he said, taking it and giving it a firm shake.
“No first name?”
“None I want to share,” he said flatly.
“Fair enough.”
“You really going to refile?” he asked as he straightened his sports jacket and adjusted his tie.
I paused. Common sense was beginning to enter the picture. “You really think it’s a
righteous case?”
“We got blood on the defendant’s sleeve,” he replied. “No lab results yet, but it looks good so far.”
Meaning: enough to keep the case alive and see what else pans out. But I had one big question before I took the plunge.
“What about that box cutter? You think our victim was about to mug someone?”
Stoner shrugged. “It’s possible. You know, cut the purse straps and run.”
I nodded.
My expression must’ve shown my reservations. Stoner went on, “I know what you’re thinking. It looks like a possible self-defense case. Tell you the truth, I would’ve been willing to let this one go as a manslaughter, if the suspect had said the guy threatened him.”
“The defendant didn’t say he’d been attacked?” I asked.
“Nope. Claimed he wasn’t there when the victim got stabbed.”
It was classic. Suspects generally don’t get nailed by confessing. They get nailed by saying something provably false. Like claiming they’d never been in a house after their fingerprints were found all over the place.
“But your eyewitness backed up on you big-time,” I pointed out. Translation: maybe this defendant is telling the truth.
“Our eyewitness is a little sketchy,” he admitted.
I nodded, but if the only eyewitness was sketchy—and from what I saw, that description seemed accurate—that didn’t leave much to rely on. Again, Stoner read my expression.
“Look, I’m one hundred percent aware that we’re going to need a lot more,” he said. “Just give me the time to get it.”
“And if you don’t?”
“Then I’ll be the first to say, let it go.”
They always say that. Maybe no-first-name Stoner was one of the few who meant it.
But I knew that if I didn’t refile the case now, it might never see the light of day. A victim with a box cutter looked bad, but neither the defendant nor anyone else had claimed that the victim tried to attack them, which told me this probably wasn’t a self-defense killing. If so, our homeless man was a real murder victim. I didn’t know much about the case, but I knew one thing for sure: he didn’t deserve to die nameless and abandoned on a dirty stretch of concrete.
