Try Darkness

by James Scott Bell

  Good point. When Roberts came over to me and stuck his hand out, I thought, this is a guy who owns courtrooms.

  “Buchanan?” he said.

  “How you doing?” I said.

  He smiled. “Saw you on TV.” Lots of people saw me on TV when I was accused of murder. That profile was not going to go away.

  “How’d I look?” I said.

  “Like you do now. Nervous.”

  “Once I get going I’ll be okay.”

  “You were a civil lawyer. Ever do criminal?”

  “Some.”

  “Trials?”

  “Once. Small company, a CFO cooking the books.”

  “Criminal’s a different gig. Homicide’s different than that. Capital is a world all its own. Think you’re up to it?”

  All right, the macho game had begun. Chest thumping. Looking for the advantage. That was right in my wheelhouse.

  “Just call me Fast Eddie,” I said.

  “What?”

  “Ever see The Hustler? Paul Newman?”

  “What’s that got to do—”

  “There’s a scene where he’s going to play billiards with a guy, only he’s never played it before. He plays the pocket game. So his manager, played by George C. Scott—”

  “Look, Buchanan—”

  “. . . tells him they’re leaving, but Fast Eddie says, Hey, it’s the same. It’s a table and it’s balls, you just have to get the feel of it. And he wins.”

  Roberts looked at me, unimpressed. “You want to plead him out now?” he said. “We’ll take off the special circumstances—he can do life.”

  “That’s some sweet deal,” I said.

  “It’s not going to get any better.”

  “Let’s shoot some pool.”

  20

  JUDGE ANDERBERRY WAS reed thin. Not workout thin. Almost anorexic. She was in her late fifties and had been on the bench fifteen years. My research also turned up that she liked the theater. She was on some board connected with the Taper. Maybe I’d do a little acting.

  She had glasses on a beaded string around her neck and a big blue copy of the California Evidence Code in front of her on the bench.

  Gilbert Calderón was sitting next to me at the counsel table. I’d gotten him some clothes to wear so he wouldn’t be in orange for the hearing. The shirt was long-sleeved to cover the gang tats.

  Just before the judge spoke Gilbert whispered, “Everything’s gonna be all right.”

  I looked straight ahead.

  The judge put her reading glasses on and called for the lawyers to state their appearances. We did. Then Roberts called the LAPD detective who investigated the crimes to the stand. Sean Plunkett was fifty-one and resembled a Rottweiler.

  I knew what he’d say because I had his report. He went over the events meticulously, like he was trained to. After forty-five minutes I got to cross-examine.

  Most lawyers don’t know how to do cross well. They let the witness repeat the direct testimony, or ask open-ended questions that invite the wit to explain to his heart’s content.

  Which is why I wince when I see TV lawyers asking, “Why did you do that, Mr. Johnson?” on cross. Mr. Johnson usually folds on the show. In real life, Mr. Johnson will likely put another nail in the coffin of your dying case.

  So I had a focus for my cross, and it went like this.

  “Detective Plunkett,” I said, “you are the one who interviewed Firooz Roshdieh, is that right?”

  “Yes,” he said.

  “And that was at one-thirty-two p.m. on the day of the incident, correct?”

  “Yes.”

  “At which time you asked Mr. Roshdieh for a description of the shooter, correct?”

  “Correct.”

  “According to your report, Mr. Roshdieh said the shooter was over six feet tall, is that right?”

  “Sometimes the stress of a—”

  “It’s a yes-or-no question, Detective.”

  “Objection,” Mitch Roberts said. “Let the witness finish his answer.”

  “The answer is nonresponsive,” I said.

  Judge Anderberry, her reading glasses perched on the end of her nose, said, “This is a prelim. I’ll allow some leeway. The witness may answer.”

  Looking like he’d just scored a Milk-Bone, the Rottweiler said, “The stress of having a gun in your face, of having your wife shot, sometimes renders the description skewed toward a larger recollection.”

  “Ah,” I said, “sort of like a shaving mirror?”

  “It’s just stress. In all other aspects, his identification was consistent with the defendant.”

  “That calls for a conclusion,” I said. “Her Honor will make that determination, not you.”

  “Your Honor,” Roberts said, “does defense counsel have to lecture the witness and curry favor with you?”

  “Ooh, curry,” I said.

  “Approach, please,” Judge Anderberry said. “Without the reporter.”

  The DDA and I went up to the bench, where the judge peered down at us like an owl. “Now, Mr. Roberts, let’s try to keep the personal out of this. And the same goes for you, Mr. Buchanan. I understand you’re both trial tested, but remember, this is just a prelim and you don’t have to pose for a jury. In fact, you don’t have to pose for anybody. I don’t even think the press is . . .”

  She stopped and looked toward the back of the courtroom.

  Roberts and I turned around.

  Everybody in the courtroom seemed to do the same.

  At an attractive nun, in full habit.

  21

  “WHAT IS GOING on?” Judge Anderberry whispered.

  “I know her,” I said.

  “You know this nun?”

  “Yes. She’s like an assistant.”

  Roberts and Anderberry looked at me, astonished.

  “What can I say?” I shrugged. “She’s good.”

  “Well, is she here to talk to you?” the judge said. “You want to have her at counsel table?”

  “Talk about currying favor,” Roberts said.

  “Not to worry,” Anderberry said. “I’m Episcopalian.” She called for a ten-minute recess and told me to straighten out what I wanted to do with the nun.

  22

  “WHAT ARE YOU doing here?” I asked Sister Mary. We were seated at the counsel table. Gilbert had been taken to lockup.

  “I wanted to see you in action,” she said. “And maybe I can help.”

  “You want to see me . . .”

  “In action.”

  I felt like Tom Sawyer in front of Becky Thatcher. I wanted to show off. Then I reminded myself that this was the Superior Court of the State of California and a man’s life was on the line.

  “This is a public building,” I said. “I guess I can’t keep you out.”

  “Do you want to?” she asked. “Do you want me to leave?”

  “Don’t you have prayers or something? Or fruitcake duty?”

  “I am using my discretion here. Besides, I have been praying for you this morning. I wanted to come down and see some of them answered.”

  “Oh yeah? Well maybe you can pray me up the real killer, huh?”

  “It’s worth a try.”

  “Try.”

  “Anything else?”

  “Lunch.”

  “Excuse me?”

  “We’ll have a lunch meeting,” I said. “I am going to treat you to the finest meal you’ve ever had. Get ready for it.”

  23

  WHEN THE JUDGE came back everyone seemed to have accepted the presence of the holy spectator, and we got right back to it.

  “When we left off,” I said to Plunkett, who was back on the stand, “I was asking you if Mr. Roshdieh said the shooter was over six feet tall. Did he?”

  “Yes.”

  “Now, you arranged for a photographic lineup, did you not?”

  “Yeah,” Plunkett said.

  I took a copy of the photo lineup from my briefcase. The photographs were numbered one through
six. Gilbert’s photo was number four.

  “I show you what is marked as Defense Exhibit 1. Do you recognize that?”

  “Yes. It’s a copy of the photographic lineup I put together for the witnesses.”

  “And what number is Mr. Calderón in this lineup?”

  “Four.”

  “Did you have Mr. Roshdieh look at the lineup?”

  “Yes.”

  “And this was one day after the shooting, was it not?”

  “Yes.”

  “Not under the stress of having a gun in his face. You didn’t have a gun in his face, did you?”

  Judge Anderberry warned, “Mr. Buchanan.”

  I put my hand up. “Sorry, Your Honor. Let me ask it this way. Detective Plunkett, you brought this lineup to Mr. Roshdieh at his residence, is that right?”

  “Right.”

  “He was not under stress then, was he?”

  “His wife was killed the day before.”

  “Did you note in your report that he was under some stress?”

  “No. It’s a given.”

  “Unfortunately,” I said, “it’s not. What you don’t have in the report doesn’t get to come in now.”

  “Mr. Buchanan,” the judge said, “the witness may offer another recollection. I can decide what weight to give it.”

  “Of course, Your Honor. I was just pointing out that the witness may be adding some recollections now under . . . great stress.”

  “Objection,” Roberts said.

  “Sustained,” Anderberry said.

  “Detective Plunkett,” I said, “according to your report, Mr. Roshdieh identified photograph number six, isn’t that correct?”

  “Yes.”

  “And he said to you—and I quote”—I got the report from counsel table and read it—“‘I never forget those two eyes.’ Is that what Mr. Roshdieh said?”

  “That’s what he said.”

  “No further questions.”

  24

  ROBERTS CALLED DENISE Barr to the stand next. She was the Fornay’s Flower Store employee who had given the most direct identification of Gilbert based on the photo lineup. From this I guessed that Roberts was going to wait to call Nydessa Perry. If he could avoid it, he would.

  So the cross of Ms. Barr would be crucial.

  She was a thoroughly credible witness. Thirty years old, pleasant looking, even tempered. She ran through the events of that day without a hitch. A Hispanic male, dressed too warmly for the weather, with short hair and brown eyes. According to Barr, he “politely” asked for money, and when she didn’t immediately respond, he asked again and pulled a gun on her. That’s when he stepped around the counter, took the money, and walked out of the store, grabbing a balloon on the way.

  Roberts asked her if that man was in the courtroom. She pointed at Gilbert.

  Then the witness was turned over to me.

  Another rule of cross, one that is constantly violated, is that direct attacks are almost always counterproductive. Unless you have the witness dead to rights, caught in a lie, or someone so unsympathetic no one cares what you do, it’s best to be as gentle as Mr. Rogers.

  “Good morning, Ms. Barr,” I said.

  “Good morning.”

  “I’d like to ask you just a few questions about the incident, all right?”

  “All right.”

  Of course it was all right. But I wanted her to know I wasn’t going to try to chew her foot off.

  “Now, according to the police report, you stated that the robber had tattoos on his neck, possibly letters, is that correct?”

  “Yes, I saw letters.”

  I frowned—a well-placed frown is good—and looked at the police report. “According to the report, your words were ‘possibly letters.’ Do you recall telling that to the police?”

  “I thought I just said ‘letters.’”

  “Do you think maybe the police got it wrong?”

  “Objection,” Roberts said. “Calls for speculation.”

  “Sustained.”

  “Let me ask it this way,” I said. “What is in the police report is at odds with your testimony, isn’t it?”

  “I don’t know.”

  “You have seen neck tattoos before, haven’t you, Ms. Barr?”

  “Yes.”

  “Now, when the suspect drew a gun, we know from the testimony of Detective Plunkett that you must have been under great stress.”

  “Objection.”

  “Sustained.”

  “You were under great stress, weren’t you?” I said.

  “I suppose I was.”

  “You suppose?”

  “Yes.”

  “Have you ever had a gun pointed at you before that day, Ms. Barr?”

  “No.”

  “It surprised you, didn’t it?”

  “Of course. Yes.”

  I looked at the police report once more. “Now, when you looked at the photo lineup, you did not immediately identify Gilbert Calderón, did you?”

  “No, I—”

  Before she could finish, Roberts was on his feet objecting again.

  “On what grounds?” Judge Anderberry said.

  “We’d better approach,” Roberts said.

  25

  BACK WE TROTTED to the bench. Roberts was hot. “Mr. Buchanan has asked a question of the witness which he knows there is no basis for.”

  “What’s he mean, Mr. Buchanan?”

  “I have no idea, Your Honor.”

  “Oh please,” Roberts said. “There is nothing in the police report stating she did not immediately identify the photo. He made it seem like there was. He deceived the witness and he asked a question that has no basis in fact.”

  “But it did have a basis in fact,” I said. “You heard the witness say no when I asked her the question.”

  “And I want that answer stricken, Your Honor.”

  “Wait,” I said. “I have an idea. Let’s make a movie of this little charade and call it An Inconvenient Truth.”

  I caught a little smile on Judge Anderberry’s face, then a quick attempt to stop it. “All right, Counsel, let’s calm down. It seems, Mr. Roberts, that Mr. Buchanan did something we see too little in criminal court these days. It’s called good lawyering. There’s always a little theatricality involved in a good cross-examination. Personally, I’d like to hear where Mr. Buchanan is going with this witness. Your objection is overruled, Mr. Roberts.”

  Very few times in my career have I wanted to kiss a judge. This was one of them.

  I went back to Ms. Barr like the gentle kitten I was. “I had just asked you, Ms. Barr, your hesitation in identifying Mr. Calderón. It took you several minutes, correct?”

  “Yes, I—”

  “Thank you. I have no further questions.”

  “I do,” Roberts said. “May I redirect?”

  “Yes,” the judge said.

  “Ms. Barr, you took several minutes because you were being careful, isn’t that right?”

  I shot to my feet. “What’s not right is leading the witness. Your Honor, why don’t we just have Mr. Roberts take the stand?”

  “That’s quite enough,” Judge Anderberry said. “Mr. Roberts, that question was improper and you know it. But somehow I have a feeling I know what you’re going to say now.”

  I loved it. The judge was having fun with the prosecutor.

  Roberts didn’t flinch. Instead he asked the obvious follow-up. “Ms. Barr, why did you take several minutes to identify the defendant?”

  “Because I was being careful?”

  The judge smiled. I smiled. Instead of just answering as she had been all but instructed by Roberts, the witness answered with a question. Like she wasn’t sure what to say or how to please the prosecutor.

  I looked out into the gallery at Sister Mary. And winked.

  Did I just wink at a nun? There’s got be some divine judgment for that.

  “One more question,” Roberts said. “Is there any doubt that the man who robbed
you at Fornay’s Flower Shop is the defendant?”

  “None,” she said.

  “No more questions,” Roberts said and quickly sat down.

  26

  ROBERTS CONFERRED WITH someone sitting next to him at the counsel table, a blond-haired woman in a blue suit who had come in halfway through the prelim.

  Then, with a look of some resignation, Roberts stood and said to the court, “We are ready to submit this, Your Honor.”

  Judge Anderberry looked at me. “Do you have any witnesses to call?”

  I knew the rule was you didn’t call your defendant at the prelim. But I toyed with calling Gilbert to the stand. If the case did go to trial, there wasn’t much in his account that could hurt him, other than the fact that no one could vouch for him. And then—

  Gilbert leaned over and said to Roberts, “Scum.”

  The judge slapped her hand on the Evidence Code in front of her.

  A couple of people in the front row snickered.

  I worked hard not to put my head in my hands. At least it wasn’t something worse.

  “The defendant is not permitted to speak,” the judge said. “Unless he is under oath on the stand.”

  “Your Honor,” I said, “Mr. Calderón won’t be taking the stand.”

  27

  I WAS READY with a citation for the judge. I read from a copy I’d made. “The evidence at the preliminary hearing must establish reasonable or probable cause, that is, ‘a state of facts that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ The quoted language is from People v. Slaughter, Your Honor.”

  The judge nodded. “Continue.”

  “The language says ‘strong suspicion.’ Not mere suspicion. I submit, Your Honor, that the People have not presented enough evidence to meet that standard. In both cases, the identification is suspect. Mr. Roshdieh identified a different photo. Ms. Barr finally did, but you saw how she testified. It wasn’t exactly airtight assurance. She pointed at Mr. Calderón here in court, but she was more sure now than when she looked at the photo lineup. A memory does not get fresher with time, Your Honor. In short, there is no reasonable cause here to entertain a strong suspicion that Mr. Calderón is guilty of the crime charged.”