Hawk made a point of rising, standing ramrod straight, "Yes your Honor, I'd like to be heard on my motions to dismiss based on prosecutorial misconduct as well as failure to comply with discovery."
"Objection, your honor," Collucci interjected
"Objection to what?" Roderick said. "You're objecting to his arguing a motion? I'll entertain the motion and take it under consideration."
"Thank you, your honor." Hawk began, "the defendant in this case is a highly regarded police officer with the misfortune of being involved in a deadly force incident. The East Providence Police investigated the matter, with the assistance of the Rhode Island State Police. The result of that investigation was turned over to the Rhode Island Department of the Attorney General for presentation to the Providence County Grand jury."
Pointing at Collucci, Hawk continued. "The US Attorney intervened and prevented the case from being put before the state grand jury. This intervention was absent any compelling governmental interest or indication of any federal issues. My motion consists of three main points.
First, government attorneys had a conflict of interest in conducting the grand jury investigation,
Second, government attorneys conducted abusive and misleading questioning of witnesses before the grand jury; and,
Thirdly, government attorneys and agents interfered with defense counsel's access to a government witness.
Clearly, the US Attorney has a conflict of interest inasmuch as he turned this into a public political circus and demonstrated no compelling federal issues. During the Federal Grand jury presentation, he threatened witnesses with prosecution, or promised immunity, to compel testimony. The government abused witnesses and forced false testimony. Lastly, the government denied defense counsel access to interview these witnesses. Some of the witnesses used to secure the indictment are not even listed in the discovery witness list. Defense had to discover their existence independently, in as much as their grand jury testimony was not included in discovery.
This case is not properly before the court.
The case should be dismissed and referred back to the Department of the Attorney General. When, and if, the matter is presented to the Providence County Grand jury, the government will have ample opportunity to review the grand jury testimony results, and, if need be, conduct an independent investigation to determine any compelling governmental interests or violations of federal civil rights.
For those reasons, defendant moves the case be dismissed."
"May I be heard, your Honor?" Ms. Fleming requested.
"Ms. Fleming, if you insist. However, I must caution you. Under the circumstances, your written response to this brief would be appreciated as a timesaving gesture to this court. I would like to move on. I am taking the motion under consideration for now." Rodericks answered.
"Very well, your Honor, I will have it to you as soon as possible." Fleming sat, taking notes.
True to his word, Rodericks pushed through the jury selection.
The jury consisted of seven women and five men. Five black, three Hispanic, and four white.
Hawk was satisfied that the mix would insure a fair and impartial verdict. Specifically, not guilty. Despite Collucci’s best efforts for an all minority jury, some masterful use of pre-emptory challenges to potential jurors worked to Hawk’s advantage.
Chapter 46: A Special Delivery
On the second day of trial, Josh walked alone into the courthouse. Hawk called to tell him he would meet him there. As Josh came up the stairs to courtroom 1, Deputy US Marshal Steve Murray handed him an envelope.
"What's this?"
"Don't know," Murray replied.
"Who gave it to you?" Josh asked.
"Read it. I was asked to get it to you before the trial." Murray turned and headed into the Marshal's office.
Josh looked at the envelope, computer printed, one letter, "J.”
As he started to open the letter, Hawk walked up to him.
"What's that?" he asked.
"I don't know," sliding it into his briefcase, "I'll read it later."
"Okay, my boy, this is where I earn my money, and you are dazzled by my legal brilliance, or not. Either way I get paid, right?" Smiling and diverting his gaze to several female reporters entering the court.
Josh looked toward the women and back at Hawk, "would it be better if I were female? Would I get your undivided attention?"
"Not at all son, I am sure you'd be an ugly woman, you'd get no attention." Walking into the courtroom and placing the files on the defense table.
"All rise."
Judge Rodericks came into the courtroom, took his position on the bench. After reviewing several documents he said, "Mr. Bennett in the matter of your motion to dismiss, I have some serious reservations about the timeliness of this. I am going to withhold any decision until I hear the government's case."
Turning to the government table, “I must say, Ms. Fleming, there are some rather striking deficiencies in the government's response. I would hope your case in chief is more substantial."
Fleming and Collucci both started to rise.
"Sit, please, sit.” Rodericks intoned, raising his hands, "I am not prejudging the matter, just expressing concern on the quality of the material so far before this court."
After a few minor preliminary matters, the jury members came into the courtroom. Judge Rodericks provided a brief synopsis of the trial structure. With the preliminary matters completed, the government began with its opening statement.
“Ladies and Gentlemen, my name is Robert Michael Collucci, the United States Attorney for the District of Rhode Island. I represent the government in this matter. We intend to present you with a tremendous amount of evidence proving, beyond any reasonable doubt, that the defendant Sergeant Josh Williams, acting under the color of the law, deprived Mr. Anthony Machado of his civil rights.”
Stopping to look at several of the jurors directly, “And more importantly, his life.” Shaking his head slowly, he looked over at the defense table, he pointed at Josh.
“Mr. Williams, while acting in his official capacity as a sworn police officer, shot and killed an unarmed African-American man for no other reason than the color of his skin.” Grabbing the sides of the podium, “Can you imagine? The color of his skin."
Holding up a picture of a Marine in dress blues, he continued. “Anthony Machado was no ordinary man. He was a decorated United States Marine Corps combat veteran, disabled by wounds both physical and psychological, and the defendant executed him simply because he was black.” Placing the picture on the podium.
“You will hear testimony, from an FBI expert in use of force and tactical operations. He will detail how Sergeant Williams, by deliberately entering the church alone, disregarded standard police practice. Based on nothing but flimsy radio reports.
Why? That is what you need to ask yourself.”
Collucci noticed some of the jurors looking at Josh. He moved to draw their attention back to himself. “Why would Mr. Williams, a trained, experience officer, enter the church alone? There were literally dozens of officers converging on the scene.”
His movement causing the desired effect. “Why not wait?”
Focusing his attention on the jurors that looked at Josh.
“I will tell you why.” Pausing to look at each juror. “He was chasing a running black man. In the insular police world, that is an invitation you cannot refuse. Sergeant Joshua Williams, a police officer, acted as judge, jury, and executioner. He took the law into his own hands, convicted a man, and sentenced him to death for the crime of being black and running away.”
Back at the podium, he leaned in toward the jury.
“The defendant killed Mr. Machado for the color of his skin, forever silencing the content of his character.”
Pointing again at Josh, “Mr. Machado, a US Marine combat hero, killed by this man sworn to uphold and protect the Constitution of this great nation.”
Taking a piece of paper
and crumbling it, “Instead, he used it to wipe the blood of an unarmed man off his hands.” Tossing the paper onto the table.
“All of this, we will show you by the overwhelming volume of evidence.
You will hear testimony for a number of other witnesses, including a Priest, who saw the whole thing from inside the church.
You will hear expert testimony of how this pattern of behavior by Mr. Williams is a textbook case of racial profiling.
You will also hear from the defense. They will try to smoke screen the government's case; distract you with things that are not germane to this matter.
Do not let them divert your focus from the important aspect.
Mr. Williams took it upon himself to disregard standard police procedure, decide not to wait for the dozens of other officers available to assist him, enter the church alone, confront an unarmed, terrified, confused, psychologically impaired black man, Anthony Machado, and execute him in cold blood.
When the government's case concludes, your certainty of the truth in this matter will be absolute. You will also be sure of your responsibility, find Mr. Williams guilty of violating the Civil Rights of Anthony Machado while acting under the color of the law. Thank you."
"Thank you, Mr. Collucci. Mr. Bennett does the defense wish to make an opening statement?" Judge Rodericks asked.
"I will reserve my opening for later your honor. I'll wait for the defense presentation," Hawk answered, smiling at the jury, "if necessary." Hawk sat down and began writing on a legal pad.
Chapter 47: The Prosecution
"The government calls Detective Lieutenant Mark Pereira," Fleming announced.
Lieutenant Pereira, dressed in an immaculate dark-blue suit, approached the witness stand, turned, and faced the clerk. After taking the oath, he sat and waited.
"Good morning, Lieutenant."
"Good morning, Ms. Fleming."
"For the record, would you state your name and occupation?"
“My name is Mark Pereira. I am a Detective Lieutenant with the East Providence Police Department currently assigned as the Officer in Charge of the Bureau of Criminal Identification, or BCI for short.
Fleming questioned Pereira on processing the scene inside the church. Fleming introduced images, video, and diagrams completed by Pereira as well as other physical evidence.
"One last question, Lieutenant, is there anything you've left out as to items recovered at the scene?" Fleming queried.
"No, that is the entire list of items recovered." Pereira answered.
"So just to be clear, did you find any weapons inside the church?" Fleming continued.
"None. If I did they would have been photographed and cataloged," came Pereira's response.
"Thank you, Lieutenant, I have no further questions." Fleming returned to the table and sat. Collucci leaned over and patted her on the back.
"Mr. Bennett?" Rodericks asked, looking over his glasses at Hawk.
"Just a few, your Honor."
"Proceed." Rodericks motioned.
"Lieutenant Pereira, when you were photographing and videotaping the inside of the church, did you use ambient light or artificial illumination?"
"I, ah we, used flash on the still digital and the illumination light on the video."
"And why was that?"
"Because it was too dark, the image detail would not have been visible. It is standard photography and video-graphic techniques to use artificial illumination to provide adequate lighting for image capture and detail."
Holding up several of the photographs, "Do any of these images or video we've seen here represent the actual view of the scene with ambient light?"
"No, they were all enhanced with artificial lighting equipment." Pereira looked over to the jury, shaking his head.
"So is it fair to say that these images in no way are representative of the actual lighting conditions inside the church?"
"Objection," Fleming rose, "asking for a conclusion by the witness not established as an expert."
"Your honor..." Hawk began
"Overruled," Rodericks interrupted. "Ms. Fleming, this is your crime scene witness. I think he has demonstrated his knowledge of the mechanics of photography and is more than qualified to answer the question, continue Lieutenant."
"If I took any digital images or video without artificial lighting, the images would not be visible. The church was very dark inside." Pereira answered.
"No further questions, your honor, but I would like to reserve the right to recall Lieutenant Pereira in the future if necessary." Hawk sat down and made more notes.
"Ms. Fleming?" Rodericks asked, looking over as Collucci and Fleming huddled.
"Nothing further, your honor."
Chapter 48: In the Manner of Dying
After several more investigators testified, the government called the Rhode Island State Medical Examiner.
"The government calls Dr. Belinda Warrish."
Dr. Warrish walked to the stand, took the witness oath and sat down.
"Good afternoon, Doctor. Would you please state your name and occupation for the record?"
"Dr. Belinda Warrish, Deputy State Medical Examiner for the State of Rhode Island."
"And how long have you been with the medical examiner office?"
"Twenty-six years."
"Your honor," Fleming looked and nodded at Hawk, "with the consent of the defense we move that Dr. Warrish be allowed to testify as an expert witness."
"Mr. Bennett?" Rodericks asked.
"No objections, you honor. I'd be happy to admit the Doctor's report as a full exhibit and agree to the validity of those findings."
"Ms. Fleming?" Rodericks asked, a bit of a plea in his voice.
"Your honor, there are certain aspects of the medical examiner's finding I wish to explore for the benefit of the jury. I will keep it brief."
"Very well, Ms. Fleming. However for housekeeping purposes, we will be taking a break at 2:00 pm, and then adjourning for the day at 4:30 pm."
"Thank you, your honor," turning to the witness, "Now, Dr. Warrish. I would like you to examine this document. Do you recognize it?"
"Yes, it is my report of the autopsy of Anthony Machado conducted on March 16, 20o9."
"Would you please read the highlighted section?"
The doctor held the report up, looked at it for a moment, then began to read.
"Subject, Anthony Machado, is a twenty-four-year-old, light-skinned, black male, five-foot ten inches, one hundred sixty-five pounds, in good general physical condition. Subject's body shows evidence of several previous significant injures including the following:
Gunshot wound with skull fracture and significant residual scarring on the left front of the head.
Muscle and surface damage to the upper left leg consistent with an injury from an explosive device. There is evidence of second and third degree burns.
Gunshot wound to the lower left abdomen.
Extensive scarring on the upper and lower back consistent with shrapnel from an explosive device.
These injuries were medically treated and healed as best as could be expected considering the nature and extent of the wounds. The leg wounds likely limited mobility of the limb.
New injuries:
1. Penetrating gunshot wound to the chest perforating the Pericardium
2. Second Penetrating gunshot wound to the chest perforating the Pericardium
3. Gunshot wound to the skull
CAUSE OF DEATH:
Primary: Gunshot to the chest penetrating the pericardial sac causing pericardial tamponade.
Manner of Death: Homicide
Evidence of injury:
Penetrating gunshot wounds of the chest:
The entrance wounds are located on the left chest, 17 inches below the top of the head, and 1 inch to the left of the midline. It consists of a 1 x ¾ inch oval perforation ranging from less than 1/8 inch thick to 1/8 inch at its widest point. This wound is consistent with a wound entrance of interm
ediate range. Upon inspection by the naked eye, gunpowder particles are not present on the skin surrounding the wound.
The second wound is locate ¼ inch to the left of the first penetration hole. It consists of a 1 X ½ inch oval perforation ranging from less than 1/8 inch thick to 1/8 inch thick at its widest point.
This wound is also consistent with a wound entrance of intermediate range. Upon inspection by the naked eye, gunpowder particles are not present on the skin surrounding the wound.
Further examination demonstrates that the wound track passes directly from front to back and perforates the pericardial sac, lodging in the right ventricle of the heart causing pericardial tamponade. There is no wound of exit.
Gunshot wound of the head:
There is a 1/8 inch circular gunshot wound of entrance over the anterolateral lower right forehead, above the eyebrow. To the naked eye, there are no gunpowder particles present on the skin.
The track of the wound perforates the anterior frontal skull and travels across the right anterior cranial fossa without brain tissue injury or bleeding.
The projectile then traverses the right temporal bone, and exits just inferior and lateral to the right zygomatic arch."
Looking up, "is there anything else you'd like me to read?"
"No, thank you. Would you explain to the jury, in layman's terms, what pericardial tamponade is?"
"When the Pericardium, the sack around the heart, is punctured it fills with blood and compresses the heart, preventing it from performing its critical function. This causes an abrupt loss in blood pressure leading to unconsciousness and death in a few minutes."
"Would a person suffering the wounds you described be able to say anything before losing consciousness?"
"Well, I believe there would be a moment or so before the blood pressure collapse rendered them unconscious during which they could speak, but it would be brief."
“Even with the head wound?”
Warrish reviewed the report again. “The head wound, while causing significant damage, was survivable. My opinion is that he would have been able to speak for a brief period before his blood pressure level dropped.”
Collision Course (A Josh Williams Novel) Page 17
