His look changed not one bit. “How long have you worked here?” he said.
“About six months.”
He laughed. Which jolted me, because he never laughed. “You know how many years I’ve been here?”
“No.”
“Twenty-two. Twenty-two years I been coming in, day after day.”
And then his eyes grew dark, as if gazing over the desolation that is lost youth. “Why am I doing this? I should be on my boat. I should be out on my boat.”
Before I could say anything else he turned and walked away.
I finished my water and threw away the cup. As I walked out of the kitchenette to return to my office, I looked down the long hallway.
Mr. Henry was there, ambling slowly toward the other end of the building. I watched him. Every so often he would reach out and tap the wall with his hand.
One month later he was dead.
19
MONDAY MORNING I drove to the Hollywood courthouse.
Carl and his mom and brother were waiting for me outside Department 77. The three of them took up an entire bench, with Mom in the middle. Parts of Carl and Eric drooped off the ends of the bench.
They stood up as one to greet me.
Carl was dressed in the same tie and coat he had on at the arraignment. He had his lucky Dodgers hat on. Fine. We could use any luck that was hanging around.
“Do I have to take the stand or anything?” Carl said.
“No,” I said. “I’m just going to argue some law to the judge.”
“What law?”
“The Constitution of the United States.”
“That covers drunk driving?”
“Stupid,” Eric said. “All them founding fathers were drunk. Of course it covers it.”
“Thanks for the history lesson,” I said. “Let’s just go in and have a seat and we’ll see what happens.”
“I got confidence in you,” Carl said.
20
KIMBERLY PINCUS WAS dressed in a fire engine red suit with a white blouse. Her hair and makeup were perfect, of course. Her demeanor less than collegial.
“This is a waste of time,” she told me as I joined her at the counsel table. “Why are you doing this?”
“It’s the system we got, Kim.”
“It’s Kimberly, and you can call me Ms. Pincus, and I can’t possibly see any point to this except showing off for your client.”
“I’m stunned,” I said. “You are an officer of the court. We all get to have our day, even those who are accused of misdemeanors.”
“You don’t really believe that, do you?”
“Ms. Pincus, I’m shocked. Shocked.”
The judge entered the courtroom.
“You’re going to get shocked right out on your ear,” Ms. Pincus said.
21
I THOUGHT SHE might be right, because Judge Solomon did not seem in a cheery mood. She called the case and said, “So are you really going to press your 1538.5?” She was referring to the penal code section dealing with motions to suppress evidence.
“Yes, Your Honor,” I said. “It was a warrantless stop. As such, it is presumptively invalid. The burden of proof passes to Ms. Pincus. She must present evidence that justifies an exception to the warrant requirement.”
“Ms. Pincus, do you agree?”
“I agree only that this is a waste of time, Your Honor,” she said.
“Then all you have to do is provide a justification for the stop, Ms. Pincus, and you can have your precious time back.”
It sounded to me like Solomon was a little put out with the prosecutor. For whatever reason. Which gave me the slightest bit of hope.
“Call your witness,” the judge said to Kimberly Pincus.
Patrol Officer John Caldwell of the LAPD took the stand and was sworn. He was a P-2, had been on patrol for three years. He looked young and still idealistic. That usually fades for a cop by year five or six.
That said, he was the kind of officer who would look extra hard for a stop if the conditions were right. And that pre-Christmas night on Hollywood Boulevard, they were. You don’t often get a six-foot-five Santa driving your beat.
The key part of the testimony came when Ms. Pincus asked, “And what did you observe?”
“The defendant, driving a Camaro, without his seat belt on.”
“Anything else?”
“He was wearing what appeared to be a Santa Claus hat, and no shirt.”
“And what did you do next?”
“I dropped behind him, and my partner activated the lights and we pulled him over just past Gower. I approached. The driver-side window was rolled down. I observed the defendant in the car and detected an alcoholic-beverage smell. I shined my flashlight in the car and saw an open bottle on the passenger side. When I asked the defendant if he had had anything to drink, he answered no, but his speech was slurred and his eyes were watery. That’s when I ordered him out of the car for the field sobriety tests.”
Kimberly Pincus turned to the judge. “As the only issue is reasonable suspicion to stop, Your Honor, that concludes my direct examination.”
“You may cross,” Judge Solomon said to me.
I almost didn’t hear her, as I was flipping fast through my copy of the vehicle code.
“Mr. Buchanan?” the judge said.
“If I may have just a moment, Your Honor.”
“Oh sure,” she said. “We don’t have anything else to do today.”
“Thank you,” I said, riffling. “Just one sec—”
And then I found it.
22
“OFFICER CALDWELL,” I said, “you stated that you observed the defendant driving without a seat belt, is that correct?”
“That’s right,” the officer said.
“You did not see any erratic driving, isn’t that true?”
“That’s correct.”
“In other words, you didn’t suspect that Mr. Richess might be driving under the influence, did you?”
“Not at the time of the stop, no.”
“In fact, it wasn’t until you had pulled him over and approached the car, and looked in the window, that you developed a suspicion of DUI, correct?”
“Correct. That’s the way it usually happens.”
“By the way, it is not illegal to drive without a shirt on, is it?”
“No.”
“Or wearing a Santa hat?”
Caldwell smiled. “Not that I know of.”
“So the only reason for the stop was for violation of the vehicle code, specifically the seat belt law.”
“Right.”
“Tell me, Officer Caldwell, how you could determine Mr. Richess wasn’t wearing a seat belt.”
“It was pretty easy,” he said. “The defendant is rather large, and without a shirt on, I could see there was no strap going across his body.”
“No shoulder strap?”
“That’s right.”
“And that’s when you decided to drop behind Mr. Richess and stop him.”
“Yes.”
“Thank you, Officer Caldwell. You’ve been most helpful this morning.”
The officer frowned, as if confused. I looked over at Kimberly Pincus. Her face was impassive.
“Do you have another witness?” Judge Solomon asked.
“None, Your Honor,” said Pincus.
“Mr. Buchanan?”
“No witnesses, Your Honor. I’m ready to argue the motion.”
“Well that’s nice,” Judge Solomon said. “I like it when someone is actually ready.”
What I heard the judge saying was that Ms. Kimberly Pincus had not been ready on some previous occasion. The judge was rubbing it in.
This was my moment.
23
KIMBERLY PINCUS SAID, “Your Honor, it is manifestly clear that Officer Caldwell observed a vehicle code violation. He therefore had probable cause to effect a stop. No warrant required in this instance, of course. So all the evidence observed subsequent to the stop is admissibl
e. Maybe Mr. Buchanan will want to talk about settling now.”
“Excuse me, Your Honor,” I said. “But doesn’t Ms. Pincus know that I get to make an oral argument, too?”
“She was rather jumping the gun,” Judge Solomon said. “Isn’t that right, Ms. Pincus?”
The CDA said nothing. But I thought I saw steam rising. It was kind of cute.
“All right, Mr. Buchanan,” said the judge. “You have my attention. I’m curious to hear what you have on your plate. As I recall, Ms. Pincus said she would be eating your lunch.”
“With all the trimmings,” I said. “We are a nation of laws, Your Honor, and as such we believe that the laws passed by legislatures have meaning. The meaning is in the text itself. Where the text is clear and unambiguous, that is what we follow. If the legislature sees a need to change the text, they will. But we don’t do that on the trial level.”
“Thank you for the civics lesson, Mr. Buchanan,” Judge Solomon said. “Is this going anywhere?”
“Good question,” Kimberly Pincus said.
“I’ll handle the argument, Ms. Pincus, thank you very much,” the judge said. “Mr. Buchanan?”
“I quote, Your Honor, from the vehicle code, the exact text of the seat belt law: ‘A person may not operate a motor vehicle on a highway unless that person and all passengers sixteen years of age or over are properly restrained by a safety belt.’ I emphasize the last word, Your Honor. Belt.”
Judge Solomon peered over her glasses. “Yes?”
“Nowhere in the statute is the term belt defined by the legislature, thus leaving it to common sense and common understanding. A belt is a strap placed across one’s lap, keeping one’s rear end in contact with a seat.”
Kimberly Pincus, sharp little tack that she was, stood up. “Your Honor,” she said. “I see where this is going. This is crazy, and—”
“Ms. Pincus,” the judge said, “please sit down and do not speak again unless you have a valid objection. I want to hear Mr. Buchanan out. This is nothing if not creative.”
“Does Your Honor have a dictionary handy?” I said.
“Right here,” Judge Solomon said. She took a volume and opened it up. Turned the pages.
Each page seemed to be a stake to the heart of Kimberly Pincus.
The judge stopped, then read. “ ‘Belt. A flexible band, as of leather or cloth, worn around the waist to support clothing, secure tools or weapons, or serve as decoration.’ ”
“Around the waist,” I said.
“Interesting,” Judge Solomon said.
“I object,” Kimberly Pincus said.
“Overruled,” said the judge.
“But you haven’t heard—”
“Overruled, Ms. Pincus. Continue, Mr. Buchanan.”
I wanted this to last forever. I flipped a few pages in the vehicle code and said, “I can well understand the frustration of the prosecution, but allow me to turn to another section of the vehicle code, Section 27314.5(a)(1). Here the legislature prescribes a warning for used-car dealers which reads as follows. ‘Warning. While use of all seat belts reduces the chance of ejection, failure to install and use shoulder harnesses with lap belts can result in serious or fatal injuries.’ What this shows, Your Honor, is that the legislature distinguishes between belts and shoulder harnesses. In other words, they knew exactly what they were doing when they wrote seat belts.”
“Fascinating,” Judge Solomon said with a smile.
“Officer Caldwell said he saw no shoulder strap on my client, and that’s why he stopped him. But there was no probable cause to stop Mr. Richess, because he could very well have been in compliance with the seat belt law by wearing a lap belt. In other words, there was no crime committed in the officer’s presence. No crime, illegal stop. Everything Officer Caldwell observed afterward was fruit of the poisonous tree.”
I love that phrase. It comes from an old Supreme Court case. It basically means if an illegal action by the cop leads to the incriminating evidence, that evidence is tainted. And therefore cannot be considered in court.
“Well done, Mr. Buchanan,” Judge Solomon said.
“May I respond now?” Ms. Pincus said.
“You may.”
“This is ridiculous. The term belt obviously has several different meanings.”
“Do you have a dictionary, Ms. Pincus?”
“No.”
“Then you are making a claim without a citation.”
Seam. Bursting. “Your Honor, please! At the very least, the term is ambiguous.”
“If I may?” I said.
“Yes, Mr. Buchanan?” the judge said.
“I have already shown that the legislature was very careful in choosing its terms. But even if we were to concede Ms. Pincus’s point, that the term is ambiguous, the Keeler case controls. It held that when a statute is susceptible to two reasonable constructions, it shall be construed favorably to the defendant.”
You could have cut the silence with Kimberly Pincus’s tongue. Ms. Pincus herself was speechless. She shook her head disbelievingly, like a teenager who’s just been told she can’t drive the car tonight.
“Give me just a moment,” Judge Solomon said. She took off her glasses and scratched her chin with one of the stems.
She was thinking about it. She was really thinking about it.
I wanted to dance.
Once, I had danced on a fancy conference table in a fancy law office, because I was hacked off at the stuffed sausage of a lawyer sitting across from me. That almost cost me my license, but it was worth it.
But I stayed seated. The dancing would come later. And it would come, because Judge Solomon, bless her heart, said the following.
“In the matter of the People of the State of California versus Carl Richess, I am going to grant the 1538.5 motion. The warrantless stop of the car was not justified, for the reasons so ably given by counsel. Therefore, all of the observations subsequent to the stop are fruit of the poisonous tree. The observations, the field sobriety tests, and the breath test results are suppressed. Do the People wish to proceed?”
A stunned Kimberly Pincus slowly stood up. “In view of the court’s holding, we have no evidence with which to proceed.”
“Then the complaint is dismissed,” Judge Solomon said. “In time for lunch,” she added, winking at me.
24
CARL RICHESS THREW his arms around me and squeezed. I was a mouse to his python.
“Drinks are on me,” Carl said.
I pushed him away. “Don’t go there, Carl. You dodged a bullet. You need to get to AA.”
“What’s that supposed to mean? Mom, what’ve you been saying?”
“Honey,” Kate said, wiping away tears, “we just want you to get better.”
“I’m fine.”
“Brother,” Eric said, “you got a disease.”
“Will you all just shut up?” Carl put on his Dodgers cap, turned for the door, and stormed out, leaving a comet tail of denial behind him.
When he was out the door, Eric said, “That didn’t go so well.”
Kate was still crying, though for a different reason now. I put my hand on her shoulder. “One step at a time,” I said. “He’ll realize he’s been given another chance. I’ll call him in a couple of days and talk to him.”
“Thank you,” Kate said. Eric took her arm and led her out the door.
I turned around and saw Kimberly Pincus. She walked over to me. Her eyes were electric.
“Don’t Tase me, bro,” I said.
She put her hands on her hips. “I guess you’re pleased with yourself.”
“Like a diva with a divorce settlement,” I said.
“I cannot believe Judge Solomon went for it.”
“It’s the law, Ms. Pincus.”
“That was one of the most outrageous arguments I’ve ever heard in a court of law.”
“Thanks.”
“Do you really enjoy putting drunks back on the street?” She gave me the steel gaze.
I gave her the same right back. “Is this going to be one of those criminal-defense-lawyers-get-criminals-off-on-technicalities conversations?”
“Shouldn’t it be?”
“The legislature makes laws. You and the cops have to follow. So follow.”
“But seat belt? That’s the very definition of technicality.”
“If you ignore what the law actually says, pretty soon doors get kicked in. You want to change things, go to the legislature. But in court, don’t tell me how to do my job.”
“You know what?” she said. “I can respect that, believe it or not.”
“It’s such a pleasant day, Ms. Pincus, how about I believe it?” She smiled. “Done. Let’s have a drink.”
25
YOU DON’T ARGUE with Kimberly Pincus without a judge on the bench.
We met at the Snortin’ Boar, a Hollywood reclamation project. It had been one of the hot places in the forties, a nightclub that was a favorite of directors and stars. The Andrews Sisters sang here. Lawrence Tierney got in a famous fight with Dana Andrews in 1955. Both were so drunk they couldn’t remember it the next day.
The place went under in 1964 and was, for a time in the seventies, a head shop. In 1995 it was an independent pizza place that almost burned down.
A couple of film-fan businessmen bought the place and restored it a few years ago. They brought back the vaulted ceiling and dark wood interior, and dim lighting. And comfortable booths, which is where I sat with the deputy city attorney.
A waiter came by and Kimberly ordered a Grey Goose martini, dirty. I opted for a beer.
“And so,” she said, “where do you come from?”
“Grew up in Florida. You?”
“New Jersey.”
“Law school?”
“Harvard.”
“I knew it,” I said.
“What do you mean, you knew it?”
“You give off a Harvard vibe.”
“What kind of vibe do you give off?”
“UCLA. Of the people.”
She laughed. “Uh-huh. Or maybe you’re just as ruthless as the rest of us.”
“Me?”
“You’ll do anything to win.”
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