“He made a number of comments in his texts and on social media,” Punch explained.
“And so you determined that he didn’t like homosexuals?”
“Well, he wasn’t exactly celebrating them, was he?” Punch said. Many in the audience smiled and nodded in agreement.
“Mr. Blair was a frequent companion of Mr. Miles, right?”
“Right.”
“Anything secret about Mr. Miles’s sexual orientation?”
“No.”
“And Mr. Blair knew and associated with others who are homosexual—true?”
Sam saw Punch’s eyes dart to Paul and then back to his own. “True.”
“So, your presumption is that he doesn’t like gay people, but it’s fair to say he spent a considerable amount of time with them?” Sam asked.
“That’s fair,” Punch admitted. He looked at the jury and shrugged.
“In fact, Mr. Blair is fairly inclusive in the company he keeps—true?”
“And fairly homophobic in the language he uses,” Punch said.
Sam ignored the nonresponsive answer, made a mental note to address the old adage regarding actions versus words in closing, and asked his next question. “You said he had a financial motive, in your opinion—is that right?”
“Yes.”
“The information you had was that my client owed Mr. Miles for drugs—is that right?”
“Yes.”
“And the texts between them you interpreted to mean that?”
“I did,” Punch said. “There were dozens of texts between them where Davonte was ordering pizza and tires and kittens and sandwiches for himself and his friends.”
“And you think those were euphemisms for drugs?”
“I do,” Punch said.
“Why?” Sam asked.
“Your Honor, may we approach?” Cathy asked.
“You may,” Daniels said, and hit the white noise button on his bench so the jurors and audience could not hear what was being said.
After Cathy, Rebecca, Sam, and Paul had assembled and the reporter donned her headset, Cathy began. “Your Honor, I object to this line of cross-examination. He is trying to put the deceased on trial. The fact that the deceased was involved in the drug trade is of no relevance. The issue is whether or not Mr. Blair killed Mr. Miles, not whether Mr. Miles was a good person.”
Daniels looked to Sam. “Mr. Johnstone?”
“Judge, the State told the jury my client was arrested in part because he owed Mr. Miles money for drugs. The jury is entitled to know the extent of the deceased’s drug dealing. It will show that a lot of people had the same motive.”
“I agree,” Daniels said. “You may proceed, Mr. Johnstone.”
When everyone was back in place, Sam began again. “Why did you think my client was not buying kittens, pizza, tires, and sandwiches from Mr. Miles?”
“Because those are common euphemisms for drugs in the trade.”
“And why would Mr. Miles be familiar with drug euphemisms?” Punch sat quietly but did not immediately respond. Sam watched him closely, then prompted him. “Detective Polson?”
“Because Mr. Miles was a confidential informant for the Department of Criminal Investigation,” Punch said at last.
“He was a drug dealer working for the State?” Sam asked, feigning surprise. He heard a commotion and turned to see Mrs. Miles being assisted from the courtroom by two others. She had her mouth covered and was shaking her head. After she had left, Sam resumed his questioning. “Have you seen Mr. Miles’s books and ledgers?”
“We were unable to locate any,” Punch admitted.
“So you don’t know how many people might have owed Mr. Miles money—do you?”
“No.”
“Could be hundreds?”
Punch sat quietly. His face was turning red. “Could be.”
“So, no record of my client owing him money, either?” From the corner of his eye he could tell the jury was still following.
“Nothing tangible.”
Sam thought he might be able to raise a little doubt on the financial motive. “Isn’t it true that the managers of the basketball team do a lot of things for the players?”
“Like sell them drugs, you mean?” Punch snapped.
“Like run errands,” Sam said quietly.
“Yes.”
“Take exams?” Sam asked.
“So I heard,” Punch said, looking again at Paul.
“Buy their beer?”
“Yes.”
“Do laundry?” Sam asked.
“So I’m told.” Punch shrugged.
“Help them with basketball drills?”
“Oh, yes.”
“So,” Sam pressed, “the request for a kitten or sandwich could have been the case?”
“I don’t believe it was, no.” Punch shook his head. “Unless someone really wanted half a kitten.”
While the jurors and audience laughed, Sam felt his face redden. “But you weren’t present when any of these requests were made, so you don’t know, do you?” he asked, desperately hoping for a simple no so he could plow more fertile ground.
“I don’t,” Punch said.
Sam smiled as best he could. Not every tactic worked. He shuffled the papers in front of him. “You said he had some bruising and scratching on his hands?”
“He did.”
“Did he allow you to photograph them?”
“He did.”
“He told you he got them in a game?”
“He did.”
“You doubt that?” Sam asked.
“Seemed convenient.” Punch shrugged again and took a drink of water.
“Did you review the game footage to see if you could verify his story?”
“I figured he’d just tell me he got them in practice—”
“Move to strike,” Sam said. “Unresponsive.”
“Sustained,” Daniels said. “Jury will disregard the response. Answer the question, please.”
“No, I didn’t,” Punch muttered.
“The phone records,” Sam said, changing subjects quickly. “What is the circular error probability of the location the phone company gets by pinging a phone?”
“As I understand it, anywhere from three to a hundred yards, depending.”
“So, assuming for the sake of argument it was my client with the phone in that location at the relevant time, the error is enough that he could have been on the sidewalk where Mr. Miles was later found, right?”
“Yes.”
“But he could also have been in this dorm, here—right?” Sam pointed to a spot on a demonstrative exhibit the State had introduced earlier, identifying the location of Kaiden and Ronnie’s room. “And in fact, he could have been all the way over here—right?” Sam asked, pointing to the field house, half of which was within the circle on the map drawn by the State’s expert.
“If that’s within a hundred yards, well, yeah,” Punch admitted.
“I’m going to represent that dorm is within fifty yards of the scene,” Sam said, then indicated an adjoining building. “I’ll represent that this dorm is within seventy-five yards of where the body was found, and that this half of the field house is within one hundred yards of the scene.” Sam pointed at each in turn. “So, my client could have—could have—been in one of two dorms or the field house and had his phone show him possibly at the scene. Isn’t that true?”
“It is,” Punch admitted.
“Now, my question to you, Detective, is this: how many students reside in, or were in that area, during the relevant period of time?”
“I have no idea.”
“So you can’t tell the jury how many other potential suspects there were, can you?”
“No, but I can tell them how many other people’s DNA was at the scene.” Punch was fully flushed now.
“Let’s look at that, shall we? I want to follow up a little on DNA,” Sam said. “Would you agree with me that the producer of DNA—or whoever leaves it
there—is not automatically the culprit?”
Punch thought about it for a moment. “I would,” he said at last.
“Would you agree there is a good reason not to convict on the presence of DNA alone?” Sam asked.
“Objection,” Cathy said. “The witness is not a DNA expert.”
“I’m asking him the question in his capacity as a senior detective,” Sam replied.
“Overruled,” Daniels said.
“Yes, I’d agree with that,” Punch said. “We always look for a fuller picture.”
“A jury shouldn’t convict on the basis of DNA alone?”
“Right,” Punch said.
Time to change tactics. “Fair to say there has been a lot of interest in this case?”
“Certainly,” Punch said.
“Fair to say you felt some pressure to make an arrest?”
“I always do.”
“So, that’s a yes?”
“Yes,” Punch said.
“Fair to say you spoke with both the county attorney and the chief of police shortly before you arrested my client?”
“Yes, but I always—”
“Fair to say they wanted an immediate arrest?”
“Well, of course,” Punch said. “But I made the choice to arrest your client, counselor.”
“Did you have the evidence you wanted?”
“Of course not. I never do,” Punch said.
“In this case, though, you’d have preferred to wait, right?” Sam was guessing, but the worst he could get was a denial.
“I made the decision to arrest, counselor.”
Close enough. “And you faced pressure from outside groups—true?”
“Me? No. Others may have.”
Sam walked to the defendant’s table and tried to squat between Paul and Davonte. He’d been on his feet for a while, and his good leg was killing him. “Anything else?”
“Good job,” Davonte said.
Paul shook his head, indicating nothing else.
“No more questions, Judge,” Sam said, and sat down.
“Ms. Schmidt, any re-direct?” Daniels asked.
“Yes, Judge,” Cathy said, and proceeded to ask a number of questions designed to undo the damage caused by Sam’s cross-examination. When she had finished, Daniels instructed her to call the State’s next witness. Time was running out and he was starting to worry about the trial bleeding over into the next week.
Cathy stood. “Your Honor, the State rests.”
The room began to buzz as spectators mumbled among themselves but quieted under Daniels’s stare. At last, he swiveled in his chair toward the jury. “Ladies and gentlemen, we’ll take our evening break at this time,” he said. “There is a matter the court needs to discuss with counsel in the morning that does not require your consideration or your participation, so I’ll have the bailiff allow you to get an extra thirty minutes’ sleep tomorrow. I want to remind you: no discussing the case, no reading about the case online or in the papers, no watching television or listening to the radio or discussing the matter with anyone. Please let the bailiff know if anyone attempts to discuss the matter with you. Finally, do not make up your mind based on anything you have heard to this point. Wait until all the evidence is in, I have instructed you on the law, and you have been retired to the jury room to take the matter under consideration.”
Following the jury’s departure, Daniels looked to Sam. “Mr. Johnstone, I’ll hear your motion—if you have one—promptly at nine a.m. Anything further we need to discuss?”
“No, Your Honor,” Sam and Cathy said in unison. With that, Daniels was gone.
Sam nodded to Cathy. She beckoned him to her table. “Got a minute?”
“Sure,” Sam said. “Let me get something set up. Mrs. Blair?” he said to Davonte’s mother, who was sitting in the front row of seats.
“Sharon,” she reminded him.
“Sharon, Paul and I would like to meet with you and Davonte in a few minutes. Could you meet us in my office in, say, thirty minutes?”
“Certainly, Sam,” Sharon said. “Davonte, come on,” she said, and led Davonte, followed by Damon and Reggie, out of the courtroom.
“Classy lady,” Sam observed.
“I agree. How the hell she has a son like that,” Paul muttered.
Sam ignored the comment. “Cathy wants to talk. Let’s get to her office.”
Cathy’s office was in the basement of the old courthouse. She was sitting behind her desk when Sam and Paul were escorted in. Sam looked at the piles of paper that had accrued since the last time he’d been there and knew what he was seeing: work unaccomplished due to the murder trial. He had similar piles in his office.
“Have a seat, gentlemen,” she said. When they were seated, she wasted no time. “Your guy pleads to murder two and we recommend he does the minimum twenty years.”
Sam and Paul exchanged a look. “I think we—Sam, really—can get Davonte to agree to plead to manslaughter and do seven,” Paul said.
“Are you kidding me? I make that offer and the gay coalition will have me drawn and quartered.” She shook her head dismissively. “Besides, Daniels won’t buy that.”
“You’ve got nothing showing first degree,” Paul pointed out. “The best you do is second degree.”
“Which has a top number of life,” she countered. “I’m offering the minimum.”
“Daniels isn’t going to give a nineteen-year-old life.” Paul shook his head. “If you can get a verdict—which I doubt—we’ll bring him in, have him apologize, and he’ll get the minimum. This isn’t an offer; it’s a recognition of what’s probably going to happen.”
Sam had been quietly watching. “I think he’s right, Cathy,” he said. “I don’t think Davonte will do the deal. I think I can get him to plead to manslaughter, though.”
Cathy stood and walked to her window, then pulled the blinds. Through them she could see the upper half of protesters milling around the courthouse lawn. She watched them for a long time. “I can’t do it,” she said at last. She turned to face both men. “I can’t do seven. I’ll try and get Rebecca to agree to manslaughter, but that’s it. I gotta live in this town, and I gotta live with the deal. Tell your client the deal is him pleading to manslaughter plus him doing twelve to fifteen and we’re done.”
“I don’t know,” Sam said.
“That’s the offer. Get it to your client. And this is it,” she said as they were leaving. “It makes me want to puke to make this one.”
Moments later, Sam and Paul mounted the steps to their office en route to the meeting. Sam noticed a large black sedan with Michigan plates parked in the spot closest to the front door. The windows had been tinted, making it impossible to see who was inside, but Sam and Paul had the same idea. “The henchmen,” Sam said.
“I cannot wait until this is over,” Paul grumbled. He stopped Sam just inside the entryway. “Sam, we’ve got to get Davonte to do this deal.”
“I know, Paul. I’ll try—”
“This is a good deal. It won’t get any better,” Paul said. He opened the door for Sam, who walked through and saw Sharon and Davonte in the waiting room.
“Follow me, gang,” he instructed.
When everyone was seated in Paul’s office, Sam explained to Sharon the next steps. “Tomorrow, I’ll start by arguing a motion saying that the State failed to make a reasonable case. I’ll ask the judge to grant my motion and dismiss the charges. He’ll deny it and—”
“Why?” Sharon asked softly.
“Because at this point in the trial, all the State has to have shown is that a reasonable person could find Davonte committed first-degree murder.”
“But no juror could,” she said. “He didn’t do it.”
Sam took a deep breath. This was always difficult to explain to clients. The differing levels of proof throughout the process were bewildering and maddening. When he’d finished the explanation, he continued. “Anyway, then we will present our side of the case. But before
we get to tomorrow, we wanted to talk about a potential plea agreement.” He turned to face Davonte. “The State has offered to cap their sentencing recommendation at twelve to fifteen years if you plead to manslaughter.” Sam looked at Davonte, and then to Sharon.
Her dark eyes met Sam’s for an instant before she turned to Davonte. “Davonte, how do you want to proceed?”
“Mom, this is a bunch of shit. These bitches—”
“Why are you talking like that?” Sharon asked Davonte. “Is that the way I raised you?”
“No, ma’am,” Davonte said, looking down.
“There is no reason for you to swear or talk like an uneducated man,” Sharon said. “How would you like to proceed?”
“Mom, I didn’t kill him. I swear on Dad’s grave!”
Sharon nodded, then looked in turn at Paul and Sam. “My son says he didn’t do this. I do not want him accepting blame for someone else’s actions. That is not what his father would have wanted; that is not what I want.”
“Mrs. Blair,” Paul began. She looked at him but did not correct him. “Sam has done a wonderful job so far. The evidence before the jury is such that they must be harboring doubts about Davonte’s guilt. Worst case, they are thinking that—even if Davonte did kill Kaiden—it was likely in the heat of the moment. This is exactly what is contemplated by the statute. This deal—”
“Davonte says he didn’t do it, Mr. Norquist. You were right here. You heard him.”
“I did, ma’am, I’m just saying that it’s our assessment that Davonte is at risk of being convicted of murder. Until now, the State hasn’t even put manslaughter on the table. Clearly, Sam has poked holes in the State’s case. But one bad court session and all that goes away, and if Davonte is convicted, he will do a minimum of twenty and possibly up to life.”
“Mom, he is selling me out! He—” Davonte stopped under Sharon’s steady glare.
She looked at Sam. “Do you agree?”
Sam had been watching the jury closely and felt in his heart they would acquit. But it was risky. The safe play was to take the deal. “A plea agreement eliminates risk,” Sam said. “If we do a deal, we have certainty.”
“Certainty my son is going to prison.” She locked eyes with Sam.
“Well, yes,” Sam said. “But for an agreed-upon period of time.”
One and Done (Sam Johnstone Book 2) Page 26
