Upon my arrival, I learned that Russ Frist had been right. Lisa Lopez was irritating, but Lucas Braun won the award for worst attorney in the courthouse. The previous afternoon, while I was at Russ’s, Braun had served me with a copy of two motions. One was a motion to suppress the racial epithet and the spit that Hanks had hurled upon his arrest. Even with the spelling errors, bad prose, and chronic comma overuse, the motion was a reasonable one; Hanks might have behaved himself if I hadn’t spoken to him after he invoked his right to counsel. It was the other filing that had me doubting Braun’s competence to handle a capital murder trial.
Braun had filed a Notice of Defense, advising the state that Hanks would be asserting a claim of self-defense. According to Braun, Hanks was entitled to use reasonable force if “the victim used excessive unlawful force against the defendants while protecting his property, to wit: one Mercedes-Benz.” I was tempted to draft a response entitled Three Reasons Why the Defendant’s Lawyer—to wit: one Lucas Braun—Is an Idiot. First, defendants claiming self-defense in Oregon don’t need to file notice. Second, beating a man with a baseball bat in order to steal his Benz did not constitute self-defense under any definition of the term. And, third, a claim of self-defense only flies if the defendant concedes that he was the killer. Right now, my biggest problem was proving that Hanks and Corbett were, in fact, the killers.
Braun’s mistakes were only going to wind up helping me. Fifteen minutes after I was done reading Braun’s motions, Lisa Lopez called.
“Did you get Braun’s motions?” she asked.
“I’ve got them right here.”
“You must be licking your chops over that Notice of Defense.”
“Believe it or not, Lisa, I don’t take pleasure winning an unfair fight.”
“Whatever. Lucas Braun’s an idiot.” For once, Lisa and I agreed. “He just called. He wants to piggyback his motion to suppress onto our hearing today. You OK with that?”
“I’ll need to make sure he doesn’t plan on making me testify.” I was the one who had spoken to Hanks after he invoked his right to counsel.
“I already asked him. He’s willing to stipulate to the facts as written in the police report. The judge is OK with it too.”
I told her I’d go along with it. Better to get both motions over with at once.
“You really said what’s in the report? ‘I’m the prosecutor who’s going to make sure you just lived your last day of freedom’?”
I had insisted that Chuck include my faux pax in the police reports to avoid the embarrassment of having to disclose it myself.
“That’s what we’re stipulating to.”
“You really need to get over yourself.”
Even though I had prepared and re-prepared for the pretrial motions, I reviewed my notes one last time before the hearing. I felt confident that Lucas Braun’s motion would go nowhere. Hanks may have invoked his right to counsel, but I had spoken to him only after he asked who I was. According to case law, a defendant who initiates the conversation is shit out of luck.
The problem, though, was that my case against Hanks was still weak. Hanks could be a spitter and a racist without being a murderer, and I couldn’t use Corbett’s confession against him.
On the other hand, I assumed that if Corbett lost his motion to suppress his own confession, Lisa would come to her senses. Corbett would agree to testify against Hanks in exchange for leniency. All would be well in the world.
The entire case turned on whether the court thought Corbett’s confession was voluntary. With that comforting thought, I headed to Judge David Lesh’s courtroom.
Mike and Chuck were waiting outside in the hall. “Is Peter Anderson here yet?” I asked.
“In the courtroom,” Mike told me.
My eyewitness had worn a suit and tie for the occasion, placing him already in the upper quarter of civilian witnesses, at least for common sense. He had a dark mustache and was losing his hair at the temples, and I knew from his PPDS that he was thirty-nine years old. As I approached to introduce myself, I was overpowered by a strong whiff of eau de ashtray.
I explained the hearing. Lisa was trying to prevent him from testifying at trial and to exclude all evidence of his identification of the defendants. She was going to argue that the procedure we had used to get the out-of-court IDs was unreliable and that his memory was now tainted from having seen the defendants’ photographs in the throw-downs.
“I don’t get it.”
At least he was honest. “What exactly don’t you get?”
“Well, how am I unreliable?”
“It’s not that you’re unreliable. She’s saying that the police used bad procedures. Like, let’s say Detective Johnson had shown you six photographs in the throw-downs, but that the defendants had been the only men, or the only white men. That would be an unreliable procedure, since it would basically tell you who the police wanted you to pick, right?”
“Yeah. OK, I get it.”
“Honestly, I’m not worried about this. The attorney’s much more focused on attacking some other evidence that’s at issue.”
“OK. So what do I need to do?”
“I’ll call you to the stand and you’ll be sworn in. We’ll talk about what you saw in the parking lot. Was there light, by the way?”
“Yeah, somewhat. You know, it was dark outside, but we’ve got light poles all around.”
“And where were the defendants with respect to the lights?”
“Not right under them, but walking through the lot no area is pitch black or anything.”
“And how good of a look at them did you get?”
“Just a couple seconds at first. You know, they caught my eye while I was taking out my garbage. Then I did sort of a double-take because I didn’t recognize them. I watched them, wondering if I should ask who they were or something. But, you know, I try not to pry too much with the residents, and they looked decent enough, so I let it be.”
“How long do you think you saw them in total?”
“Maybe ten or fifteen seconds after they first caught my eye.”
“What angle did you see them from, head on? From the side?”
“Well, they were walking up the hill, which was pretty much right at me.”
“Do you remember what they were wearing?”
“Like I told the detective that first morning, I thought it was just jeans and rain jackets.”
Close enough. Trevor’s jacket had been denim, but eyewitnesses were rarely perfect. “You’ll be fine.”
“Am I going to have to talk about the light in Percy’s carport? Because I feel…well, I don’t think I can find the right words for it—”
“You can’t look at it that way. You could imagine changing a thousand different things about that day and never know if the ending would differ. And, no—the defense will probably ask generally about the lighting where you saw the defendants, but not about the carport.”
He seemed relieved, but I did have some bad news for him.
“There is one thing we should probably talk about.” I pulled a copy of Anderson’s PPDS record from the file. “This particular attorney is very aggressive, and she’s likely to ask about the occasions when police were called to your home, particularly the arrest two months ago.”
His agitation was apparent. “That was all a bunch of stuff with my liar of a wife. What in Pete’s sake does that have to do with—”
“It doesn’t,” I explained calmly, “but this isn’t a trial. There’s no jury here. The judge is likely to let her ask the questions so he can decide for himself whether any of it’s relevant, which, I agree, it’s not. I just wanted you to be aware that she’ll probably ask. It’s best if you simply answer the questions, making clear that you were never prosecuted and have no convictions. OK?”
“It’s still a bunch of crap.”
“I understand. The system’s not always fair to witnesses.”
He nodded, realizing he’d be put through the wringer merel
y because he happened to be taking his trash out shortly before Hanks and Corbett decided to kill someone. I was in no position to know the truth about what happened between Anderson and his wife, but I’d had my job long enough to carry suspicions. Even so, I wasn’t about to defend a system that let a lawyer like Lisa Lopez scrutinize every aspect of this man’s life, searching for a diversion from her client’s guilt.
“You’ll be fine,” I told him. “And, really, thank you for doing this.”
David Lesh runs a tighter ship than most judges. He emerged from chambers just five minutes past the promised hour, then apologized for running late. As usual, his blond hair could have used a cut, and his bemused expression suggested an unspoken joke lingering beneath the surface. Having heard colorful stories of Lesh’s happy-hour days as a prosecutor and city attorney, it was probably for the best that he rarely shared his sense of humor in court.
Once Lesh took the bench, I suggested dealing with the eyewitness testimony first. The least I could do was get Anderson out of here.
Once the bailiff swore Anderson in, I walked him through the testimony as I’d prepped him: the garbage, the parking lot, the defendants, Detective Johnson, and the throw-downs. Anderson was a good witness: articulate, straightforward, and responsive.
Then it was Lisa’s turn to cross-examine. “You supposedly saw the men you described in the parking lot on Sunday night, the night of Percy Crenshaw’s murder. Is that correct?”
“Yes.”
“And Detective Johnson came to you on Tuesday morning with the photographic lineups, correct?”
“Yes.”
“Isn’t it true that on Monday you spent the day with the police looking through books of mug shots?”
“That’s right.”
“Did the police have those narrowed down in any way for you, by hair color, perhaps, or even by height or age?”
“I’m not sure. I don’t think so. There were a lot of pictures.”
“Let me put this another way. When you talked to police on Monday, did you tell them the ages or the heights or the hair colors of the men you saw?”
“Well, I said they were young. White. Average build, which they are, at least to me.”
“What about hair color?”
“I wasn’t sure.”
“But nevertheless you picked these men from the photo arrays that the prosecutor has submitted as evidence.”
“Yes. Right away. Once I saw their pictures, I recognized them.”
“Two days after you’d seen them for a few seconds in a dark parking lot?”
“Objection, your honor,” I said, rising slightly.
Judge Lesh sustained the objection. “I recall the witness’s testimony. Don’t worry.”
“I’ll rephrase,” Lisa offered. “You say you recognized the defendants when Detective Johnson showed you the photos on Tuesday?”
“Yes.”
“Do you remember what time it was on Tuesday when Detective Johnson showed you the lineups?”
“Midmorning, I think.”
Lisa glanced at the supplemental report Johnson had written about the ID. “Eleven fifteen A.M. Does that sound about right?”
“Yeah. I mean yes.”
Lisa carried a videotape to the clerk and had it marked as an exhibit, then inserted it into a TV/VCR near the stand. I recognized the local news anchor. According to the network marker in the lower corner of the screen, it was broadcast at 9:32 A.M., the Tuesday after Percy’s murder. The anchor reported that two men had been arrested in the case. Their booking photos from the night before appeared on the screen, part of the press release issued by the bureau. Both looked pretty nasty. Not surprising, I thought. Corbett had started out as a normal-looking kid. But even a normal guy looks like shit after such an abnormal night.
Lisa stopped the tape when the anchor moved on to the next story. “Now, according to that tape, the local news was publicizing the defendants’ arrests by nine-thirty on Tuesday morning, nearly two hours before you were interviewed again by Detective Johnson. Is that correct?”
“Yes, but—”
“Thank you. You’ve answered the question posed. Now, Detective Johnson’s not the first police officer you’ve encountered at your home, is he?”
“No,” Anderson replied, looking to me for help.
“In fact, you’ve had some problems with law enforcement recently, haven’t you?”
“I wouldn’t call them problems, no.”
“No? You were arrested just two months ago, weren’t you, Mr. Anderson? Isn’t that a problem?”
Anderson shook his head, frustrated. “Given the things my wife was saying at the time, it was probably good for me to be gone for the night. No charges were filed, and she moved out a couple of weeks later.”
“Just to be clear, you were arrested for assaulting your wife, correct?”
“That was the accusation, but, no, I did not assault her.”
“And the police had been to your home several times prior to that over the course of the last year to investigate other domestic disturbances, correct?”
“Objection, your honor,” I said. “Ms. Lopez has already moved beyond any possible definition of relevance by inquiring about an arrest. This is simply harassment.”
“Goes to bias, your honor.”
“I’m wary, Ms. Lopez, but there’s no jury here. Mr. Anderson, I’d appreciate it if you’d continue to answer the questions, even though I may very well decide they’re irrelevant.”
Anderson nodded, and Lisa restated her question.
“One of the neighbors called the police a few times about arguments my wife and me were having. Let’s just say they were loud, and we’re better off separated. My wife made clear that everything was fine, and the police left. I guess the last time she really wanted me out. She told them I’d hit her, and, like I said, I got arrested.”
It was plausible. Oregon has a mandatory arrest law for domestic violence. Even if it’s a shaky case, the police are required to remove the aggressor from the home if there’s probable cause for a domestic assault.
Lisa marked a document as evidence, handing me a copy in the process. The caption read MARCY WELLINGTON V. PETER ANDERSON, FAMILY ABUSE ORDER OF PROTECTION.
“Could you please identify this document for the court, Mr. Anderson?”
“Why don’t you tell me what you want to call it?” So Anderson had a temper after all.
“This is a restraining order that your wife obtained against you after she moved out. Is that correct?”
“Yep.”
“You objected to it?”
“Of course I did. She made up a bunch of lies in the application. Made me sound like a wife beater or something.”
“And, despite your objections, the order was issued?”
“Her word against mine. I told the judge I didn’t care whether I saw her or not, I just wanted to clear my name. The judge said, ‘If you don’t care, then you won’t mind me issuing the order.’ And that was that.”
Again, it was plausible. No family court judge wants to be the one who denies a restraining order, then reads about a homicide two weeks later.
“So you’re aware that if you contact your wife in violation of that order, you would be arrested?”
“That’s the law as it was explained to me, yes.”
“No further questions, your honor.”
I saw where Lisa was going. She’d argue that Anderson saw the defendants on the news and fabricated the identifications to get in good with the bureau, just in case he was arrested down the road. It was farfetched even for Lisa.
I went straight to what mattered on rebuttal. “I noticed that Ms. Lopez cut you off earlier. You were trying to say something about the fact that the news report she showed you aired before Detective Johnson interviewed you. What were you trying to say?”
“That I never saw it. I was sleeping until right before the detective came up. Honestly?” Anderson looked at Judge Lesh. “I was hun
g over. Things haven’t been going so well with me lately, in case you haven’t figured that out already.”
Once Lisa and I had finished submitting our evidence, Judge Lesh announced he was ready to rule.
“I am denying the defense’s motion to suppress the witness Peter Anderson’s identification of the defendants. The procedures used by the police were standard and permissible. At its heart, the defense’s argument is that the witness’s memory was tainted by media coverage of the defendants’ arrest. Although the publication of the defendants’ photographs may raise colorable arguments about the source of the witness’s recollection, those will be for the jury to consider. Mr. Anderson, you’re excused.”
Ironically, my best hope of bolstering Anderson’s ID at trial would be to remind the jury that he was hung over and pathetic. Before he left, I thanked him again for coming in and assured him that I’d do my best to keep Lisa from questioning him about his wife again at trial.
“Now,” Lesh said, once Anderson was gone, “should we get down to what we really came for?”
Three hours later, the evidence was in. No real surprises, since I had insisted that Mike and Chuck disclose the entire truth about the night Corbett and Hanks were arrested. If we were going to win, I wanted it to be because we were right, not because the judge had a mistaken impression of the facts.
The tension between Mike and me was palpable. I tried to hide my discomfort with his tactics, knowing it would be the death knell of the confession if Lesh sensed it. Mike tried to conceal his disgust with my detailed questions, pretending he was at ease divulging every aspect of the investigation.
So out came the entire story. The lengthy interrogation, with Corbett held incommunicado, in cuffs, through its entirety. Lying to him in every possible way: about the nature of the investigation, the strength of the evidence, even the identity of the very prosecutor in the courtroom. The threat of the death penalty hung over his head. Corbett’s ambiguous reference to an attorney, ignored. His own apparent uncertainty about the events of that night, thanks to good old reliable crystal meth.
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