I kept my distance from the witness and remained professional. Cops hate defense lawyers, and given how they sometimes get spun around on the stand, I don’t really blame them. I tried not to incur his wrath.
“You said you saw the defendant engage in what you described as an altercation. Isn’t it true that he was assaulted by the second man? Knocked to the ground by him?”
“I didn’t see that.” Good response, actually. He chose not to argue. Just stood by what he said the first time. I didn’t push it. I’d planted the idea in the jurors’ heads. We’d come back to it later.
“You did see the defendant on the ground, though, right?”
The officer nodded. “With the gun in his hand.”
“Were his eyes open?”
He thought a moment before answering.
“Yes.”
“When you first arrived?”
Another brief hesitation. “I’m not sure.”
“So his eyes might have been closed.” Good enough. “You said the defendant did not cooperate when arrested. Did he resist arrest?”
Parkland tilted his head. “He wasn’t happy about it.”
“I don’t know anyone who would be. But did he actually resist?”
“He didn’t respond when I told him to drop the gun.”
“Is it possible he’d been knocked unconscious?”
“He did eventually respond.”
“But before that?”
Parkland shrugged. “I don’t know. I’m not a doctor.”
“You would expect his responses to be sluggish if he’d been knocked out, right?”
“Maybe. He came to life soon enough. Spouting all that foreign stuff.”
“You said you saw the gun in the defendant’s hand. Do you know how it got there?”
“I assume he pulled it—”
“Excuse me, Officer, but I didn’t ask you to assume anything, nor will I ever. Do you know how the gun got there?”
“I didn’t see that.”
“Is it possible someone else put the gun in his hand? Like the other man in the so-called altercation.”
“I didn’t see that.”
“Is it possible?”
“Anything’s possible. But if someone offered me a gun at a crime scene, I wouldn’t take it. And if they put it in my hand, I’d drop it. Fast.”
“Motion to strike the nonresponsive part of that response.”
“Sustained,” the judge grunted.
I addressed the officer. “You might drop the gun if you were alert and awake. But you couldn’t do that if you were unconscious, could you, Officer?”
“Objection,” Thrillkill said. “Calls for speculation.”
“Sustained.”
I hoped I’d made my point with the jury. “One last thing I want to be clear on, sir. Did you see my client fire that gun?”
“No.”
“Thank you. No more questions.”
33
The next two witnesses established the chain of custody for all the physical evidence the prosecution would present. Everything was logged, catalogued, and preserved as it should have been. No surprises there. I didn’t cross-examine.
The next witness was a fingerprint expert, a woman, not the same person Thrillkill used at the preliminary hearing. I wondered if that was because there were so many women on the jury. I’d read her report. She would establish that Oz’s fingerprints were on the gun and that the paraffin test showed he’d fired a gun recently. None of this was remotely controversial or in question, so the only purpose of my cross-examination would be to explain to the jury what this did and did not prove.
“You said the test showed the defendant fired a firearm.” I asked. “Correct?”
Dr. Brenda Adams straightened and smiled. “That’s correct.”
“But let’s be clear—that doesn’t prove that he fired the murder weapon, does it?”
It obviously did as far as she was concerned. “Well .
“You can’t prove what gun he fired, can you?”
“His fingerprints were on the murder weapon.”
“Which also does not prove he fired that gun, does it?”
“It proves he held it in his hand.”
“We already know it was in his hand. But you can’t prove that he fired it, can you?”
“I know he fired something.”
“Would your findings be the same if he had fired a gun the night before at a firing range?”
“I suppose.”
“In fact, the results would be the same if he had fired a gun anytime in the last twenty-four hours, wouldn’t they?”
“That’s true. But—”
“Did you find any DNA evidence on the gun?”
Too much hesitation. “That’s not my department.”
“You work in forensics, don’t you? I would imagine you know if forensics found any DNA evidence.”
“We did not.”
“Wouldn’t you expect to find something? Flakes of skin. Spittle. Something?”
“In the midst of so much activity—”
“You found no DNA evidence.”
“No.”
“Thank you, Doctor.”
I was playing a game of inches. The prosecutor was building a Lego house, and I was trying to knock it down, one brick at a time. I had a tiny hammer. But Oz’s life would depend upon how many bricks still stood when we finished.
***
During the break, before Thrillkill called his next witness, Christina left to make a phone call home. I didn’t know how long that might take, but a few minutes later, I was pleased to see her slide into the chair beside me. I probably shouldn’t admit it, because I’m a hard-as-nails trial attorney and all, but I always felt a wave of comfort when she sat beside me, in court or anywhere else. Knowing someone had my back was a relatively new sensation for me. Which is why my ongoing attitude was always “anything Christina needs, Christina gets.” When it comes to making decisions, she frequently tells me that I’m the boss, but I’ve never been stupid enough to believe it.
“Everything good at home?” I whispered.
“Seems to be. Julia has the girls under control.”
“And you’re okay with that?”
“She does have mommy experience.”
“Ish.”
“She’s actually very capable.”
“Good.”
Thrillkill called Officer Takei to the stand. He was the bombshell witness at the preliminary hearing. His testimony would have a huge impact on the jury, but at least this time I wouldn’t be caught by surprise. I had my panoply of excuses and hoped that, even if the jury didn’t really buy them, they wouldn’t laugh right in my face.
The judge swore Takei in. Thrillkill took him through the preliminaries and established who he was and what he did on the day of the shooting. He did not waste much time getting to Oz’s apartment.
“Have you seen these before?” Thrillkill handed him a sheaf of documents that had been premarked as “Prosecution Exhibit 17.”
“Yes.”
“Where did you see them?”
“In the defendant’s apartment.”
“Objection.” I rose to my feet. “It wasn’t only the defendant’s apartment. Several people shared the space and had access.”
“Nonetheless,” Thrillkill said, “it was the defendant’s apartment.”
“That many other people had access to.”
“And now, Counsel,” the judge said curtly, “I believe you’re arguing, not objecting. Overruled.”
But I made my point with the jury, just the same. I wanted them remembering, throughout this testimony, that Oz was not the only person who could’ve placed suspicious items on the premises. Just in case they took the phrase “reasonable doubt” seriously.
Thrillkill continued. “Did you find these documents in the apartment where the defendant ate and lived and slept?”
“Yes. On the desk.”
“Could you describe them for
the jury, please?”
“Many appear to relate to an organization called PACT.”
“And what is PACT?”
“It’s an organization of people sympathetic to Middle Eastern causes and the rights of Middle Eastern people.”
“A militant organization?”
“Objection,” I said. “Outside the witness’s expertise.”
The judge shrugged. “He can answer, if he knows.”
Takei nodded. “PACT has been associated with several violent crimes in the past.”
Thrillkill continued. “What do these PACT documents say?”
“Some are general business documents. Some are written in a kind of code. I can’t read it. And some specifically reference Agent Nazir.”
“Let’s talk about those. What do they say about Nazir?”
“The documents indicate that PACT considered him a threat. One of them specifically says that, and here I’m quoting, ‘He must be stopped.’”
Thrillkill paused for a moment, letting that sink into the jurors’ heads. “Did you search anywhere other than the desk?”
“Yes, I searched the entire apartment.”
“Did you discover anything out of the ordinary?”
“The medicine cabinet was filled with opioids. Mostly OxyContin. A few others. Serious mind- and mood-altering narcotics.”
“Objection to the witness’s commentary,” I said, not bothering to rise.
“Your Honor,” Thrillkill rejoined, “I think we all know that opioids alter a person’s personality and thinking.”
“Then we have no need for this witness’s unqualified testimony on the subject,” I replied.
“Your Honor,” Thrillkill pressed, “when someone is taking large quantities of drugs of this nature, there’s no telling what they might do.”
“And who’s arguing now?” I asked.
The judge almost smiled. “The objection is sustained. The witness will limit his testimony to his personal knowledge.”
Takei tucked in his chin. “Yes, Your Honor.”
“How much of these narcotics did you discover?”
“Over a hundred pills. And judging by the amounts given on the labels, many had been consumed.”
“Thank you. Did you find anything else of note in the apartment?”
Takei hedged. “Not . . . in the apartment.”
Thrillkill took the cue. “Did you search the surrounding area?”
“Yes. In particular, a storage shed behind the building.”
“Was the shed locked?”
“Yes. I used wire cutters to sever the chain.”
“And what did you find inside?”
“Explosives.”
The reaction in the jury box was noticeable. Perhaps they hadn’t heard the media reports.
“What kind of explosives?”
“Various incendiary devices involving gunpowder. Some electronic devices. And beside the fireworks . . . I found several bags of fertilizer.”
Thrillkill knew what he was doing. He chose his clincher with forethought and skill.
“Thank you, Officer. No more questions at this time.
34
My turn. I rose to my feet and walked halfway to the witness stand. “Thank you for coming today, Officer Takei. We all appreciate your devotion to duty.”
The officer tipped his head. He wasn’t buying it. And well he shouldn’t. But I saw nothing wrong with being polite at the outset. In a few minutes, he was going to hate my guts.
“I heard you say you found the documents identified as Exhibit 17 in the defendant’s apartment. I didn’t hear you say he wrote any of them. Do you know whether he did?”
“Well, I presume—”
“Excuse me, Officer, but I’m not asking you to guess. As the judge indicated, we only want you to testify about what you know. Who wrote the documents?”
“In most cases, the documents are unsigned.”
“In most cases. Then in some cases, the documents are signed?”
“Yes.”
“By whom?”
“By someone named Mina Ali.”
“And that’s not the defendant.”
“No.”
“In fact, when the jury has a chance to examine the documents for themselves, they’ll see that the defendant’s name does not appear on any of the documents, does it?”
“Not that I recall.”
“Did you investigate Ms. Ali?”
Thrillkill stood. “We did, Your Honor, and in fact we may call her to the stand at a later time.”
“That doesn’t answer my question,” I rejoined, “nor does Mr. Thrillkill need to be answering the witness’s questions for him.”
The judge frowned. “The witness will respond.”
“I never questioned that woman,” Takei said.
“So you never asked her if she wrote the documents.”
“I didn’t, no.”
“But you told the jury you made a thorough investigation.”
“Of the defendant’s apartment.”
“Except it wasn’t just his apartment, was it?”
“He had access to it.”
“As did many other people, correct?”
“My understanding is that he had roommates.”
“The truth is you don’t know who wrote those documents or who left them on the desk, do you?”
“I know the defendant was associated with PACT and—”
“Officer, you are not answering my question. Do you know for a fact who wrote those documents?”
“No.”
“Do you know who left them on the desk?”
“No.”
“These documents contain information about Nazir’s use of torture and other ‘enhanced interrogation techniques,’ but there are no actual plans or threats made again Nazir or anyone else, true?”
“One memo says, ‘He must be stopped.’”
“Is it wrong to want torture to end?”
“Another document says, ‘The day of reckoning is fast approaching.’”
“So?”
“Sounds like a threat to me.”
“You realize that comes from the Bible. Don’t you? It’s in the Koran, too. Not surprising, since the Koran incorporates a great deal of the Bible. Do you think the Bible threatens the US government?”
“No.”
“But a reference to a passage in Isaiah does?”
“You have to consider the context.”
“In your case, sir, I think that’s all you considered. You found out Oz was Muslim, and you pronounced him guilty on the spot.”
“That’s not—”
“Here’s another document I’d like you to look at. May I approach?” The judge nodded. I handed Takei a brochure. “Would you read the first sentence on the front cover, please?”
He did as instructed, a surly expression on his face. “The day of reckoning is fast approaching.”
“Is that another threat to the American way of life?”
“It’s an NRA brochure.”
At least two of the jurors smiled. “You’re an NRA member, aren’t you, Officer?” I didn’t know, but sometimes you just have to take your best shot.
Pay dirt. “Yes.”
“Is the NRA a threat to the US government?”
“Definitely not.”
“And yet they use the same dangerous language. In an equally unsigned document. Is it possible this is a common phrase used when urging people to take political action?”
Takei shrugged.
“You do believe in the First Amendment, don’t you?”
“Yes.”
“That’s good to know. Now I’d like you to look at the third document in that exhibit, the one you indicated was written in code.” He turned to the page I indicated. “How do you know it’s written in code?”
He shrugged. “It’s gibberish. Doesn’t make any sense.”
“To you, maybe. Could it be written in a foreign language?”
He p
eered at the page. “Looks like American letters to me. Just doesn’t make sense.”
“Are you a scientist?”
“No.”
“Could these be chemical equations?”
“I couldn’t tell you.”
“This is, in fact, a series of formulae describing a potentially valuable isotope of iridium. This is a draft of an attachment to an article written by an Iraqi scientist named Yasmin al-Tikrit.”
“If you say so.”
“Now let’s talk about the drugs. The truth is those drugs you mentioned were prescription drugs, weren’t they?”
“I suppose.”
“And all the pill bottles you found bore prescription labels, didn’t they?”
“I believe so, yes.”
“You mentioned that taking pills could affect someone’s behavior. Someone going off their doctor-prescribed meds could alter their behavior, too, couldn’t it?”
“That’s not my area of expertise.”
“Really? A minute ago you knew all about the potential effects of these drugs. Now you don’t?”
“Objection,” Thrillkill said wearily. “Argumentative.”
The judge tilted his head. “Counsel does make a point. But I think the jury has the idea. Let’s move on.”
Being the hardheaded defense attorney I am, however, I was not quite ready to move along. “You don’t have any objection to someone taking medication prescribed by a physician, do you?”
“Of course not.”
“Did you make any effort to find out why these drugs were prescribed?”
“I know on the street OxyContin is a popular—”
“Pain reliever,” I said, cutting in. “It’s a pain reliever, right?”
“Yes.”
“Why would a doctor prescribe a pain reliever?”
Takei’s silence was even better than an answer. It gave the jury a moment to consider the question.
“You are aware that the defendant served in Iraq, right?”
“Yes.”
“You are aware that he suffered severe injuries? That he’s been diagnosed with PTSD?”
“Yes.”
“Do you suppose that could relate to why a doctor might prescribe pain relievers?”
Justice Returns (Ben Kincaid series Book 19) Page 18
