“Suzi, assuming what you say is true about the Defendant’s choice of ammunition, what makes you think that this shell is a re-load instead of a new factory round?”
That’s it. The kid has given Myra enough rope. Myra put the noose around her own neck, and the kid is now about to tighten it. She looks up at the judge.
“Mister Judge, I can tell Myra how I know that this shell casing is a re-load, but in order to do it, I’ll need the help of my assistant. Can I please call him into the room, so that I can show everyone here how I know that’s a re-load?”
That ‘Mister Judge’ did it. He immediately melts down to a point where she could ask him to let her try on the robe, and he probably would take it off then and there and hand it to her. He looks down at her and gives her the answer she expects.
“Of course, my dear.” The judge then looks up and speaks to a bailiff standing near the rear entrance doors. “Bailiff, please go out into the hallway and bring in this witness’ assistant.”
The bailiff opens the rear doors, but he doesn’t have to go out into the hallway to find the kid’s assistant, because the assistant walks in all by himself. I’m amazed that she actually did it to us. Here comes the Saint Bernard walking down the aisle, heading for the open gate towards the witness stand. More bedlam in the court, because everyone stands up to look down at the dog and sees that he’s been fitted with a special leather harness that has two baggage containers – one on each side, much like the burros you would see carrying things for the gold prospectors in old movies. I now realize what the shoemaker was doing on our boat that day. One baggage container has Tony’s re-loading press, and the other holds his powder measurement device.
The dog comes around to the side of the witness stand and stays there, waiting for instructions. It takes another minute or two, but order is finally restored. The judge looks down at the kid. “This is your assistant?” She answers with a ‘yes.’ The judge asks another question. “He isn’t going to testify today, is he?”
This time she gives him the line that she must have been working on for several days. It comes complete with a little smile. “No, silly, he’s only a dog.”
Ordinarily, anyone who addresses a judge as ‘silly’ is certainly assured of a reprimand, a fine, or a jail cell. This time it was timed perfectly, and the judge laughs, along with the rest of the courtroom spectators, including the jury. Myra and I both look at each other, realizing that no matter what the verdict is, we’ve both lost today and the kid has won. Not only has the kid taken over control of the judge, she also owns the bailiffs. She asks one of them to bring over a milk crate for her to stand on, and another bailiff to remove the items from her assistant’s harness and put them on the small demonstration table that was brought over for her to work with.
Once the equipment is set up, she stands on the milk crate and starts her demonstration with a lecture.
“Whenever a bullet is fired from a gun, the explosion forces the empty shell casing to change its size. It can get wider, longer, or both. If you want to re-load it to use again, you must put it into a press like this so that you can force it back into the size it originally was, or it won’t work in the gun.” I see that Tony is looking at her like a proud parent.
As she speaks, she gives the court a demonstration, using an empty shell casing that her assistant brought in. As I look around the courtroom, I see that everyone is nodding, as if they are in total agreement with everything she’s saying.
“When you use the press to change the size of the shell, the press makes what are called ‘sizing marks’ on the outside of the casing. These sizing marks aren’t always visible to the naked eye, but you can see them with a microscope. The empty shell that was shown to me before has sizing marks on it, so I know it’s a re-load. I also know it’s a re-load because a friend of mine let me use his ‘bore scope’ to look inside the shell, and compare the gunpowder residue with gunpowder residue from a factory round. A microscopic comparison showed that the powder we used for re-loading was a different composition from the factory powder residue. A gas chromatograph confirmed our findings.”
All during this testimony, the entire viewing public both inside and outside of the courtroom are no better off than that kid who was being hustled at Bensinger’s Poolroom in Chicago. That kid didn’t notice the old hustler gradually sobering up, and the audience here doesn’t notice this kid witness morphing from cute little waif to brilliant forensic examiner.
When she finishes her lecture, she tells Bernie to go wait in the hall. At least I think that’s what she told him, because the command was given in Chinese. The dog promptly obeys and walks back through the gate and through the courtroom exit doors that are being held open for him. It’s doubtful that the Chinese command will ever appear on this African-American court reporter’s transcript of the trial. It also serves to let the audience know that Suzi is fluently multilingual, which adds to her intelligence and credibility in the minds of the jurors. I see that there is an Asian woman on the jury, and she can’t seem to be able to wipe an ear-to-ear smile off of her face.
Myra finally decides to quit while she still may have a chance to salvage her case. I inform the court that as far as the Defense is concerned that the kid may be excused now, but that I may be calling her as a defense witness when I present our case.
In a criminal trial the usual procedure is for the witnesses not be allowed to watch each other’s testimony, but in this case I make a strange request of the judge.
“Your Honor, we realize that non-testifying witnesses are usually excluded from the courtroom, but as you know, the Prosecution is always allowed to have a witness at their counsel table if he or she is their investigator. In this case, we do intend to recall this child to the witness stand, but we ask the court’s permission to let her remain at our counsel table as our investigator and technical expert.”
The judge thinks about it for a moment as he looks down at Suzi. She looks up at him with the same pleading expression that might appear on the face of a cocker spaniel puppy about to be put to sleep at the dog pound. There’s no way the judge can refuse that face, and every person in the courtroom but the judge immediately realizes it, so his answer is no surprise to anyone. “Well counselor, this would be the youngest investigator I’ve ever allowed to remain at the table, but I can’t see any harm in it, and it would give me a chance to see her a little more.” Boy, she sure has him by the nose ring.
Myra doesn’t even waste her time by trying to object. Instead, she stands up and tells the judge that the People rest their case. The judge asks me if we’re ready to go ahead with our defense, and I tell him that we only have two witnesses. He signals me to proceed, and I call the Defendant, Tony Edwards to the stand. The kid sits next to me on the telephone directory that one of her bailiffs brought over from the witness stand. She’s close enough to tug at my elbow if she thinks I’m making a mistake or forgetting to ask a question.
Tony walks over to the witness stand and gets sworn in by the court reporter. I have the kid’s list of questions on the table in front of me. Looking down at them, I start to see which direction she wants me to go. I start with the basics, establishing that he is in fact the owner of the .50 caliber gun in the D.A.’s exhibit, and that he absolutely did not shoot the victim.
Next I have him tell the jury that in his opinion re-loads are not dependable enough in life-and-death situations, so it is against his department’s policy to have a weapon loaded with them for any other purpose but target practice.
We go into the details of his ammunition purchasing and show that only one box containing 20 rounds was purchased for normal use, and another five boxes were purchased for practice and re-loading purposes only. Suzi is tugging at my sleeve and pointing to a group of questions on the list. I get the feeling that she’s exerting a great deal of control by restraining from jumping up and trying to take over the questioning herself.
After the ammo stuff is covered, we go into a series
of questions that explain why he prefers to re-load the shells, and the economics of spending up to three dollars each for new factory round is compared to the costs of powder, bullet head and other incidentals required for re-loading. Tony explains how a pound of gunpowder contains seven thousand grains, and that a re-load can use as few as 25 grains, making the pound good for at least 280 re-loads. A twenty-dollar pound will mean that each re-load costs only seven or eight cents. That amount added to a twenty-cent replacement bullet head keeps the average cost of each re-load down to less than fifty cents, including the primer and other items required. This represents a savings of over 2.50 on each re-loaded shell and can save a serious target shooter up to a thousand dollars a month.
I then ask him to explain why it is not proper to use re-loads for anything but practice. At this point Myra makes a relevancy objection, but I’m able to convince the court that this information is necessary for us to show why a re-load would not be in Tony’s gun unless someone else planted it there. Her objection is overruled, so we go on to learn that there have been too many incidents where re-loaded ammunition has mis-fired or jammed a weapon. This is bad enough when it takes place on a practice range, but no experienced peace officer wants to take a chance like that in a life-or-death situation, so when not on the range, only brand new factory rounds are used.
Now that we may have convinced the jury that Tony would never have put a re-load into his revolver for use outside of the practice range, I feel that we may be on the way of creating some reasonable doubt about his guilt. At least I’m finally starting to think he might be innocent.
Knowing how much ammunition Tony usually uses at the practice range, we discuss how he manages the rounds. He explains that he uses a Speed-Loader, into which five bullets are placed. Before going to the range, he will load about twenty of the Speed-Loaders with the re-loaded ammunition he plans to fire that afternoon. Each Speed-Loader is a cylindrical device that lines up with the empty slots in his gun’s cylinder. After he finishes firing off the five rounds his gun carries, he swings the cylinder out, dumps the empty rounds into his ‘brass basket,’ uses the Speed-Loader to insert five re-loaded cartridges into his cylinder at one time, swings his cylinder shut, and tosses the empty Speed-Loader into the brass basket. During this entire period of time, the five factory rounds that were in his weapon when he got to the range are in his trousers pocket, ready to be re-inserted into his cylinder at the end of the day.
This same procedure is repeated each time he goes to the practice range. He brings with him a basket containing twenty Speed-Loaders, each with five cartridges, and goes home with the same basket containing twenty empty Speed-Loaders and one hundred spent shell casings.
I feel a tug at my sleeve and see that the kid is pointing at the next group of questions. By looking ahead earlier, I can tell where she’s going, so I decide to continue the rest of my examination not sitting next to her. I’m afraid if I stay seated at the table while she keeps tugging at my arm and pointing to the list of questions, it’ll look like she’s the ventriloquist, which leaves only one remaining role for me to be playing.
We discuss what clothing Tony usually has on while he’s shooting at the practice range and he describes the ‘lucky’ Rugby shirt he likes to wear. It’s the one he wore many years ago during a shooting competition that he won. When I ask him whether or not he wears it to and from the range or changes there, Myra pops up with another relevancy objection. I make an Offer of Proof to the judge. That gives me a little leeway here and means that if I don’t show that these questions were actually relevant, the whole line of testimony can be stricken from the record. He accepts my offer and Tony is allowed to continue with his answers. He explains that there is a changing room at the range, so he usually carries the Rugby shirt in the brass basket and puts it on before shooting, removing it at the end of the session.
At this point I start to zero in on the exact end-of-the-day routine. Step by step we re-create Tony’s every move, from the time he finishes firing off the last round of the day, to the time he gets into his car to leave the range. His progress is as follows. He finishes shooting the last practice round, empties the cylinder into the brass basket, loads the five factory rounds from his pocket back into the cylinder, and walks to the changing area.
Once inside the changing room, he struggles for as many as fifteen or twenty seconds trying to remove the Rugby shirt, which fits tighter every year due to a loss of elasticity in the shirt and Tony’s muscles getting bigger. I stop him right there with some pivotal questions.
“Detective Edwards, while you’re struggling to get out of the tight Rugby shirt, where is your gun.”
“It’s on the bench, right next to my brass basket.”
“If your Rugby shirt is a tight enough fit to take fifteen seconds to get it over your head, does that mean for a short period of time the gun is out of your sight?”
He answers this in the affirmative, and I press on.
“Is this changing area private, or are other shooters allowed to use it at the same time that you do?”
He thinks for a few seconds before answering. “Yeah, some other shooters may be in there at the same time. We hang around for a while exchanging war stories. It’s mostly a lot of cops that use the range.”
“Detective, how long would it take someone to pick up your gun, swing out the cylinder, remove a factory round, insert an empty shell casing, and then put your gun back down in the same place?”
I can see that Tony is visualizing the entire process in his mind, counting off the number of seconds it might take.
“Probably less than ten seconds.”
“So in other words, what you’re telling us is that while you’re struggling to pull a tight garment over your head, your gun is out of your sight for up to twenty seconds, and someone could have performed the acts I questioned you about and still have ten seconds to spare. Is that correct?”
Bingo. I see some light bulbs going off over the heads of a couple of jurors. Turning around to return to my seat, I also see some serious scribbling going on in the gallery.
“Sure, I guess that someone could do that without me noticing it.”
At this point I have no further questions to ask him, so I tell the judge I’m through with him for now, and let Myra have a shot at him. Now I’m amazed for the second time this afternoon. Myra passes. The prosecution has no questions for Tony.
This is unheard of. There isn’t a prosecutor in the world that doesn’t salivate at the chance of having a shot at the defendant in a criminal trial. It’s too good an opportunity to pass up. The only reason I can figure out for her passing up a chance like this is that she’s starting to get the idea that I might win this case, and she doesn’t want to come off too harsh against a police hero who might get acquitted. Smart move on her part. She wants to live to fight again another day.
By the time I get back to my seat, Tony is out of the witness seat and back to his chair next to me at the counsel table. I call my next witness.
“The defense calls its investigator and technical expert, Miss Suzi Braunstien.”
She hears her name and jumps right up to her seat in the witness box, barely giving the bailiff a chance to bring the telephone directory over and slide it under her rear end before she plumps down and starts adjusting her microphone.
She gives a subtle smile to her new friend the judge. He returns it in kind, so I know that she’s still in control of the courtroom. I check over her list of questions and know what to ask, but I have no idea what the answers will be. This is not a comfortable situation for any lawyer to be in during a trial, but I have to trust her on this one. I start out by showing her the prosecution’s exhibit of that empty shell that they removed from Tony’s gun.
“Suzi, you’ve seen this exhibit when you testified earlier today. Do you have any way to tell when it was fired?”
To the amazement of me and everyone else in the courtroom, she answers.
�
��Yes.”
Another round of whispering goes on and this is a four-gavel-bang disturbance. I’ve already stuck my neck out by starting with this line of questioning, so I might as well go all the way. I ask the next question.
“Would you please tell the court when you think this round was fired, and also explain the facts you base your opinion on?”
Myra is up and out of her chair making an objection on the ground that only an expert can offer an opinion as evidence. I don’t have to say a word, because the judge reminds Myra that both sides agreed in advance by stipulation to letting her testify as an expert. Now Myra finally realizes what the kid has done to her. With the objection discussion resolved, Suzi continues with her answer.
“First of all, knowing that the empty shell casing was planted in Detective Tony’s gun while he was changing at the range, it must have been at the end of his shooting session, because I saw him return to the Marina before five PM that day. The shell must have been planted between three and four PM that afternoon.”
No whispering in the court, but plenty of scribbling and pressing of keys on the reporters’ laptops. Suzi hesitates for a second, as if to gather her thoughts, and then continues on with her answer.
“I figured out the same things that Detective Tony testified to. About the only time someone could have changed the load in his cylinder, but wondered about where the empty round came from. Because his gun was taken away from him that same evening, we never bothered to unload the brass basket and do any re-loading, so I dumped out the contents of the basket and counted the spent shells. There were exactly one hundred of them. This means that if one of them was taken out and planted in his cylinder, whoever did it must have taken it out of the brass basket and tossed in another empty one to replace it.
“Knowing that must have been what happened, I thought that out of the hundred empty casings in the basket, one of them came from the person who did the switch, and that person also must have the same kind of gun. I think that whoever did the switch did the killing.”
Until Proven Innocent Page 20
