by Ray Rhamey
Noah said, “The same goes for me, Edith.”
Judge Edith leveled a judicial gaze at him.
He hastened to add “Your Honor.”
“We are privileged to have such weighty friends. Welcome.”
They took their seats.
She turned to the chief investigator. “Mr. Wyngate, the evidence?”
“Ready, Judge.” He indicated a laptop computer on his table. “I’d like to start with a video of the shooting.”
After entering the video into evidence, the investigator said, “Call Lea Shoop to the stand.” A guard opened a side door and a plump teenage girl entered, her steps quick and stiff-legged. Her wide eyes looked scared.
Wyngate escorted her to the witness chair and placed the verifier headband on her head. On computer screens around the room, an ever-changing graph of her brain activity appeared. At the screen’s bottom was a dull green circle. If the witness said something that triggered a memory in his mind, the green light glowed. If there was no memory, then it did not come on.
Judge Edith turned to the jury. “I remind the jury that you may ask questions, but you must be recognized by me before you do so.” She nodded to the investigator. “Go ahead, Mr. Wyngate.”
“Miss Shoop, did you shoot video with your phone at the Alliance newcomers meeting on the night of the sixth?”
She nodded.
The monitor screen showed a spike in one brain activity graph line. The green circle glowed brightly below it and then dimmed. Her answer had been confirmed by activity in her brain, a memory that coincided with her affirmation.
Judge Edith’s voice was kindly. “You’ll have to speak up a little, Lea.”
Lea’s cheeks flushed red. “Sorry, ma’am. Yes, I did. Shoot a video. I did.”
Wyngate turned the laptop so that she could see the screen and tapped a key. The screen showed the audience in front of the Lithia Park band shell. Noah Stone stood on the stage. Other computer monitors in the courtroom showed the same image. “Is this from your video?”
“Yes, sir. That’s what you got off my phone.”
The green light glowed.
Marion raised her hand. “Your Honor?”
Edith nodded and Marion rose. “Ah, aren’t witnesses usually sworn in?”
“We don’t require that anymore, not since the verifier became part of our process. And, as you well know, if a person intends to lie, the swearing-in has no meaning anyway.”
“That may be true, Your Honor, but lie detectors have no legal standing in court. The oath is the only defense against perjury.”
With the calm patience of a parent explaining something to a child, Judge Edith said, “We do not use a lie detector, Ms. Smith-Taylor.” She aimed a hand at the witness stand. “This is brain fingerprinting. I’m sure you’re aware of the technology.”
At least Smith-Taylor had the grace to blush. “Yes, ma’am, but we have not accepted it in federal courts.”
The judge’s voice sharpened. “We accept it here, as have other state courts in the United States, Ms. Smith-Taylor. The machine has proven accurate time and again. The science is valid. The machine detects an uncontrollable recognition response in the brain when a fact that a person holds in memory is mentioned.” She took a deep breath. “It works. Is that clear?”
Smith-Taylor dropped her gaze to the tabletop. “Thank you, Your Honor.” She sat.
Wyngate said to the witness, “Please tell us how you came to have this video, Miss Shoop.”
“Uh, I was recording Mr. Stone’s speech when this guy stood up in front of me and then pulled out a gun.” She swallowed. “Then his head kind of blew up and I swung around to where I’d heard the shot come from.” She pointed at Soldado. “And that man was . . . he was . . .”
Wyngate said, “That’s fine, Miss Shoop. We’ll let the video tell the rest of the story.” He tapped a key and the video started. “The action begins just before the shooting.”
The courtroom grew hushed. The footage was jerky, but clear. At the moment Earl Emerson aimed his gun, his face twisted, his hand tightening his finger on the trigger, Noah heard a gasp from Jewel. He glanced at her; she covered her mouth with a hand, her expression one of horror.
Then the monitor showed Earl’s head explode. The image blurred as the camera phone swung. It stopped at Hank Soldado aiming his gun at the victim. Other people in the scene held stoppers, but no one else had a lethal firearm. Heads in the audience turned toward Soldado. Wyngate stopped the playback and turned to his witness. “Miss Shoop, is that the video you shot in the park?”
Tears ran down the girl’s cheeks. She nodded, glanced at Judge Crabtree, and said, “Yessir. It was horrible.”
“That’s all, Miss Shoop, thank you.” The girl slipped off the headgear before Wyngate could help her and scuttled out. He turned to Hank. “Mr. Soldado, please take a seat on the witness stand.”
Soldado went to the chair; his face could have been chiseled from granite. Wyngate put the verifier headgear on him. Noah hated to see this happening to a man he’d liked and trusted.
The tension was almost tangible. The investigator began. “Mr. Soldado, did you shoot a man named Earl Emerson on the evening of the sixth?”
Marion stood. “Objection, Your Honor. He cannot be compelled to testify against himself.”
Judge Edith said, “In our state, Ms. Smith-Taylor, every citizen is required by law to help determine the truth regarding a matter under inquiry. He will answer the question.”
Marion lifted her chin. “I respectfully submit, Your Honor, that to force him to testify violates his rights under the Fifth Amendment to the Constitution of the United States, which specifically states that ‘No person shall be compelled in any criminal case to be a witness against himself.’”
Irritation soured the judge’s voice. “Partially true, Ms. Smith-Taylor. If you wish to quote the Constitution, please quote the entire relevant clause. In this case, it says, ‘No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.’
“Because Oregon has a compelling state interest in securing justice for its citizens, the state interprets this clause to mean that, just as we deprive persons of life, liberty, and property with due process of law, so can we compel someone to testify if there is due process, even if to do so is contrary to his desire to be declared innocent. In this state, we have established that due process, and you’re holding it up.”
Marion thought for a moment, then said, “I must reiterate my objection. The American adversarial system was created to reach the truth, and protections for the accused have been built into the law.”
Noah raised his hand. “If I may, Your Honor?”
“Please, Mr. Stone. Perhaps you can help the court head off further interruptions.”
Noah rose and addressed Marion. “In principle, the adversarial system seeks the truth. I think you’ll agree, however, that in practice each side seeks victory and truth often has little to do with the cases presented by the defense and the prosecution.”
The attorney general’s jaws clenched. “We have a due process of law.”
Noah said, “Do we? Vaughn versus Tennessee said, ‘Aside from all else, due process means fundamental fairness and substantial justice.’ Where is fundamental fairness when thousands of criminals are acquitted because they lie? And where is justice when thousands of innocent people are convicted because ‘the system’ is too crude an instrument to reveal the truth?
“Under the modern adversarial system, a robber arrested coming from a bank with a sack of stolen money in his hand will plead not guilty, and then the system will attempt to prove that the robber did what a bank full of people and the robber himself know he did. No one is surprised when he lies about his culpability.
“And, in a courtroom, no matter what oath he swears to tell the truth, it is expected that he will plead not guilty, which is a lie. It is ‘the
system.’
“Worse, a small procedural error can get the crook off altogether on a technicality—even though all, including the judge and defense, know that he did the deed.
“William Kunstler, a top defense lawyer, is reported to have said, ‘Screw the law. You get the guy off any way you can.’ Defense lawyers distort the truth in order to free known criminals. Prosecution lawyers do the same in pursuit of conviction. Lawyers seek to discredit opposition witnesses, not to glean the truth from them. The adversarial system is about winning, not justice.”
He paused and gazed at Smith-Taylor’s calm exterior. “Have I mischaracterized the adversarial system?”
Her voice thick with emotion, she said, “Whatever its shortcomings, the American legal system has served the people since our nation was founded.”
Noah stifled a rush of irritation and kept his voice calm. “How well does a system serve the people when it permits, no, encourages the flagrant, premeditated freeing of criminals because it is forced by convoluted technicalities to respect lies as if they were truths?”
She offered no answer.
“An entire industry of criminal defense lawyers dedicates enormous intelligence and resources to win freedom for people who have committed vile wrongs. That’s a crime against society, and here we have done something about it.
“A lie should not be allowed to set a wrongdoer free or imprison an innocent. Real justice cannot transpire until the truth is known. Here, where the aim of our legal system is truth instead of victory, the adversarial system has been changed to one of advocacy.”
He gestured toward Benson and Jenny. “We have two advocates, one who looks after the rights of the accused and one who looks after the rights of the people. They are both required by law to seek the truth.”
He pointed at the verifier. “We use science to verify a statement as true or false with ninety-nine percent accuracy. When you add in the testimony of witnesses and physical evidence, our ability to determine the truth is as close to one hundred percent accurate as any human system can get.
“In our system, the famous O. J. Simpson murder trial wouldn’t have taken a year of time and millions of dollars. Within days, the jurors would have known whether the police had tampered with evidence. Jurors would have heard from O. J.’s lips the truth of what he had or hadn’t done. The truth—”
He stopped and grinned at Edith. “I’m sorry, Your Honor, I get fired up about this subject.” He couldn’t stop a feeling of pride at seeing the justice system he’d dreamed of in action. He sat.
“That’s fine, Mr. Stone, I do too, and it doesn’t hurt to be reminded. Now, Ms. Smith-Taylor, are you clear on how things are going to work in this courtroom?”
Smith-Taylor’s face had paled beyond exhaustion. In flat tones that revealed her effort at control, she said, “Yes, Your Honor. Nonetheless, for the record, I object to the coercion of this defendant.”
Judge Edith tapped her gavel. “So noted.”
“With all due respect, Your Honor, if this man is convicted on the basis of his forced testimony, I will be appealing this case.”
The judge nodded. “You’ll have to get in line. A fellow who drove a truck of that nasty pink drug into the state plans to take his conviction to the Supreme Court. Maybe you can join his case.” She shifted her gaze to Hank Soldado. “Please answer the question. Did you shoot Earl Emerson?”
All eyes turned toward Hank.
Life on the Line
Hank straightened in the witness chair. He wasn’t about to do this the easy way. And Smith-Taylor might find grounds for an appeal if he put up a fight.
“No,” he said.
A line in his graph spiked. The green light glowed. His brain had betrayed him by acknowledging a memory of shooting Earl when he’d denied it.
The judge sighed. “Mr. Soldado, please tell the truth as you know it. You will stay in that seat until you do.”
Marion Smith-Taylor stood, and Edith held up a hand. “And, before your friend of the court protests, this is not coercion. To lie is a conscious decision. And so you shall sit there until the truth as you believe it to be is heard.”
The attorney general sat.
Hank shrugged and said, “Yes. I shot him to stop him from killing Noah Stone.” The green light glowed.
Don Wyngate said, “You are in the employ of the Alliance?”
“Yes. To provide security.”
The investigator held up Hank’s forty-five. “Is this your weapon?”
“Yes.” Green light.
“Were you aware that it is a lethal firearm—” he ejected the magazine, still filled with ammunition “—and that it was loaded with high-powered bullets?”
Legal proceedings were so tedious. He resisted an impulse to say “Duh.” He said, “Yes.” Green light.
Wyngate set the pistol and the clip on the evidence table. “Did you know that possession of such a firearm is against the law in this state?”
“Yes, but I needed it to do my job.”
“You did not think a stopper would work?”
“No. Nap would have taken too long. Emerson would have had plenty of time to kill Mr. Stone because he was using a lethal firearm.”
A hand went up in the jury from a thirtysomething man.
Judge Edith nodded to him. “You have a question?”
“More of an observation, ma’am.”
“Can’t have observations from the jury, sir, just questions.”
He thought, then asked, “Mr. Soldado, didn’t you know a spray of whack would have shut his eyes instantly and stopped him just as quickly as a bullet could kill him?”
Hank started to shake his head, but then remembered that Noah had described it to him. But he hadn’t really known for sure it would do that, so he said, “No, I didn’t.” The green light remained unlit to show no memory of what whack could actually do.
The investigator followed up. “If what the juror said is true, sir, could a stopper have prevented the attack without loss of life?”
They had him there. He said, “If true, it might have.” He gazed at the jury. “If, that is, someone had shot it in time. As it was, I was the only one quick enough to react.”
“Are you certain of that?”
Hank thought of the shooting. He’d been so focused on Earl that he hadn’t seen anything else. “No.” The green circle stayed dim. No knowledge of that.
The people’s advocate, Jenny, raised her hand, and Edith nodded for her to speak. Jenny said, “Mr. Soldado, did you have reason to believe that Earl Emerson had deadly intent toward Mr. Stone?”
He didn’t see a need to get into the conversation with Hatch and Emerson. “No.”
The green light flared. Busted again.
Hank sighed. The thing was good. Trying to lie would only make him look guilty to the jury. He said, “Actually, I had previously heard him threaten Mr. Stone’s life.” The green light lit again.
“So you felt certain that murder was his intent?”
“I knew it was.”
Jewel, her voice businesslike, asked, “Mr. Soldado, do you feel that you were justified in killing Earl Emerson?”
Soldado looked her squarely in the eyes. “Absolutely.”
The green light glowed.
“Any remorse?”
What kind of question was that? The guy was set on murder. He shrugged. “None.” Green again.
The judge turned her gaze on the advocates. “I think we have all the information we need, unless the advocates or the accused wish to call other witnesses.”
Benson stood. “Not here, ma’am. The facts are clear.”
Jenny rose and said, “The people’s advocate agrees.”
Judge Edith addressed Hank. “Mr. Soldado, we also inquire into extenuating circumstances that may modify the consequences of your wrongdoing, so I have a couple of questions. Because we understand that people who are angry are not wholly rational, I want to know if you were angry with Earl Emerson at
the time you shot him.”
Hank said no, and the verifier reflected no memory of anger toward Earl.
“Mr. Soldado, do you have anything to add?”
Hank removed the verifier headgear and turned to the jury. “This seems simple to me. Yes, I shot a man and killed him. But I did it to prevent the murder of an innocent man. As an officer of the law, I’ve done the same before. I had only seconds to stop him, and there was no time to debate the niceties of which weapon should be used.” He dropped the verifier gear on the table in front of him. “I believe I’m guilty only of saving a life.”
The judge said, “I’m sure Mr. Stone is especially appreciative of your good intentions. The jury may consider your purpose, but I must warn you, the state of Oregon is determined to end gun violence, and it is your behavior that the law must deal with.”
She turned to Benson. “Mr. Spencer, do you have evidence or witnesses in regard to any extenuating aspects of Mr. Soldado’s mental state or competency at the time of the shooting?”
Benson said, “No, Your Honor, there is no reason to doubt his sanity or competency.”
Judge Edith turned to the jury. “It has been established that the accused, Henry Soldado, did knowingly possess a lethal firearm, and that he did shoot and kill Earl Emerson with it. Unless the jury wishes to modify the statutory consequences for these wrongs, Mr. Soldado will receive his choice of the following: for the possession of a lethal firearm, separation from society for a period of ten years or therapy; and for the killing of Earl Emerson, separation from society for life or therapy to a level of satisfaction that he is rehabilitated. The jury will go to the polling room and either approve those consequences or recommend alternatives.”
The jury filed out.
Judge Edith focused on Hank. “Our juries don’t ordinarily take long, Mr. Soldado, because they know the truth. I customarily take this time to explain a few facts to the accused.
“There is a contract between society and the individuals who live in it. Society provides things an individual cannot, such as roads, electricity, hospitals, medicines, the Internet—the many, many things that make up modern life. In return, the individual does not damage society by inflicting harm upon its citizens and property.
