Retrieving the report from his briefcase, "Your honor, there exist a report of an examination by the FBI Crime laboratory, regarding the shotgun recovered at the scene of the robbery.”
Fleming leaned over to Collucci, “That report was in the discovery package I prepared. Did you remove it?”
Collucci just smiled, “It’s not germane, argue that.”
“You argue it, I complied with discovery”
Hawk noticed the discussion between Fleming and Collucci. Perhaps I am spreading some fear, uncertainty, and doubt here. Fragmenting the team, he thought.
Continuing his argument, “This report indicates that positive matches were made on two prints recovered from the shotgun. Those prints belong to Mr. Machado. This information is critical for the jury to have a true picture of the circumstances surrounding this matter. However, the government has chosen to withhold the information from the defendant.
The case has started. Defense developed its theory based on the reasonable assumption that the government fulfilled its obligation for complete discovery. Double jeopardy has attached. It is impossible for the defendant to receive a fair trial because of this revelation. The whole basis of the government's case was frail at best, now we find they have stooped to a new low of intentionally withholding exculpatory evidence.
For these reasons, defense moves for a directed verdict in light of the government's failure to comply with the full intent of discovery, thus denying the defendant an opportunity for a fair trial."
Hawk turned toward Fleming and Collucci, "under these circumstances, it is the proper thing for the court to do."
Rodericks wrote down some notes and then looked to Collucci. "How does the government respond to this allegation, Mr. Collucci?"
Collucci looked at Fleming, his eyes directing her to deal with this. Fleming started to rise, Rodericks motioned for her to sit, "I prefer to hear from the person responsible for the US Attorney's Office. Mr. Collucci, would you be so kind as to illuminate the court in this matter?"
Collucci attained his current position by avoiding situations like this. He bore all the pedigree and appearance of a brilliant lawyer, but it was all show. All wretch and no vomit as Hawk liked to say.
He did not perform well when forced to think on his feet. He preferred the orchestrated, choreographed environments he could control. "With the court's indulgence, I think it best Ms. Fleming respond. She was more involved in the discovery process and can best answer this matter." Collucci pleaded.
"The court is not in an indulgent mood, sir. Your office handles these matters on a routine basis. Assistant United States Attorneys litigate cases here every day. However, you have never sat at the governments' table. You've taken a personal interest in this matter, have involved yourself in pre-trial motions and argument, so Mr. Collucci, I ask you again, how does the government respond to the defendant's motion for directed verdict?"
Collucci went on a rambling, embarrassing, illogical diatribe basing his argument primarily on the fact that the government never intended to introduce this particular report in this trial, thus making it unnecessary to include in discovery.
He argued that it was not germane. Whether or not Machado, at some point, handled the shotgun was irrelevant. He held no weapon when Sergeant Williams shot him. The prior handling of any weapon by Machado was not an element of the allegation, was prejudicial to the jury, and not exculpatory in any stretch of the imagination to Williams.
It was painful to watch.
Hawk wished they allowed cameras in Federal Court. He would get the tape and pass it out as Christmas presents to everyone Collucci stepped on over the years.
Rodericks was practically salivating on the bench.
"So let me see if I understand your argument, Mr. Collucci," Rodericks countered.
"The government's position is that the document is not relevant, but if it is relevant, it's not exculpatory, and if it is exculpatory, it's not fatal to the defendant's ability to receive a fair trial, and the jury shouldn't be allowed to hear this evidence as it is prejudicial. Is that it? There's been no harm, let's just continue our merry way?"
"Your honor, my point is..."Collucci struggled to reply.
"Mr. Collucci,” the Judge interrupted, “that’s what I am trying to determine, you've made several points, few of which are persuasive. However, I disagree with all your contentions except, that a directed verdict may be too extreme a remedy. At least I thought you raised that issue. Perhaps I was just hoping you would, or I imagined it." Rodericks looked over to Hawk and back at Collucci.
"Mr. Bennett is it safe to assume your second motion is to compel the government to make the report available to the defense?"
"It is your honor, but I wish to reaffirm the defendant's contention that it is impossible for him to receive a fair trial."
"Yes, yes," Rodericks motioned for him to stop, "the court fully recognizes your argument and motion for a directed verdict. I need some time to consider this. We will stand adjourned for one hour." Rodericks stood up and left the bench.
The reporters in the courtroom stampeded out the door to be the first to report Collucci's evisceration.
Chapter 51: The Experts
An hour later, the courtroom awaited the Judge's decision. Rodericks entered and assumed the bench. Organizing his notes, he looked at the lawyers, "I have taken this matter under review. The carelessness of the government regarding discovery in this matter greatly disturbs this court. The requested documents should have been included in pre-trial discovery. While I am not persuaded at all by the argument of their significance, they should have been provided."
Looking at Collucci, "I want assurances from the government that there will be no more surprises in this matter regarding clearly discoverable material. I am denying the defendant's motion for directed verdict and granting the motion to compel production of the document regarding the FBI laboratory testing of the shotgun. Let me be perfectly clear. Any subsequent matters of a similar nature and I will have no choice but to grant a directed verdict. Is that clear, Mr. Collucci?"
Collucci rose, "Yes, your Honor."
"Mr. Bennett, the government will have this report delivered to you by the close of business today. You will advise the court immediately if they do not comply."
Hawk stood, looked over at Collucci, and said, "Yes your Honor. I will so advise the court."
Rodericks then ordered the jury brought back in. Once seated, he looked to Collucci, "is the government ready to proceed?"
"We are your Honor. The government calls Dr. Folami Kingston."
A tall, distinguished, black man came from the back of the courtroom and stood in the witness box. Dr. Kingston was seventy-six years old. He held several degrees from a variety of universities throughout the world. For most of his career, he was virtually unknown outside his academic specialty, Sociology, with an emphasis on Inter-racial interaction in pre-industrial America.
Doctor Kingston was the author of a controversial study of racial profiling. The conclusions rocked the conservative intellectual think tank, Wyman Janes Foundation, which funded the research.
In essence, Dr. Kingston's conclusions, disputed by all the report's co-authors, postulated that every police officer was incapable of controlling innate prejudices in dealing with blacks. This pattern of prejudice affects all officers' interactions with a person of color; including black officers by virtue of their acceptance of the police culture. His primary point being that the innate nature of police agencies foster such conduct and that this was, in fact, deliberate and intentional.
Dr. Kingston took his seat on the witness stand.
Margaret Fleming looked at the jury, and then turned to Dr. Kingston, "Good morning, Doctor."
"Good morning, Ms. Fleming"
"Doctor, would you please tell the jury of your academic and educational background?"
"I'd be happy to. My current position is Dean of the College of African Studies at Columbia University
. I hold a dual PhD in Sociology and African Cultural Studies from Harvard University. I serve as a Fellow on the United Nations Committee on Race Relations. I am a Governing Board member of the Association of African Universities, and I also hold a position as Visiting Professor at the University of Venda, Thohoyandou, Limpopo, South Africa."
"Thank you Doctor, would you also tell the jury about your publishing accomplishments."
"I would be glad to," turning to the jury. "I have published over 100 articles in professional academic journals. I have several books still in print on Sociological Research Methodology, and I am the principal author on the 'Study of Racial Profiling: Patterns, Causes, and Implications sponsored by the Wyman Janes Foundation."
"Thank you Doctor. Your Honor the government moves to have Doctor Kingston admitted as an expert and allowed to testify as such." Ms. Fleming said.
"Mr. Bennett?" Judge Rodericks looked to Hawk.
Rising, Hawk began, "Your Honor, I am confused as to what Dr. Kingston, in spite of his curriculum vitae, offers the court in the way of an expert. If I understood the Doctor's initial testimony here, he has an impressive array of academic and educational credentials. However, only one of those touches on racial profiling. I fail to see how authoring one study, in which all the other authors drew different conclusions, is an adequate basis to allow expert testimony by this witness. The defense strongly objects to the government's motion."
Judge Rodericks paused a moment, and then said, "The Court notes the defense objection, in essence, arguing to the point that the witness may be asked to give testimony as to the ultimate issue and thus questioning its value as assisting the judge and jury in deciding this matter. I am going to allow Dr. Kingston to testify under the rules as an expert. Ms. Fleming please keep to a narrow scope here. The Doctor has substantive credentials, but the court cautions about drifting too far astray."
"Thank you your Honor,” retrieving a document from her file, she continued. "May I have this marked as government, where are we, ah, government's fifteen for identification and approach the witness?"
"So marked, approach."
"Dr. Kingston, do you recognize this document?"
Taking the document, Dr. Kingston examined it for several moments then handed the document back to Fleming, "Yes I do, it is a copy of the report I authored on the racial profiling practices in police agencies."
"Your Honor, the government moves to have the document marked as a full exhibit."
"No objection, your Honor," Hawk affirmed, before Rodericks could ask.
"Very well, document is marked government Fifteen, full exhibit."
"Doctor, now referring to your report, can you describe the methods used and conclusions drawn in regard to racial profiling within law enforcement organizations?"
"Well, the purpose of the study was, through standard data analysis protocols and methodology, to determine if, in fact, racial profiling is a phenomenon within police agencies and to make a determination as to underlying causes."
Flipping through the report he continued, "We analyzed several thousand arrest reports looking for commonalities in the stated purpose, the conditions under which the encounter took place, and the background of the involved individuals."
"We also used test subjects, under double-blind study procedures, to measure changes in skin temperature and resistance when shown images of similar circumstances.
Measuring skin resistance and temperature changes has a long-standing acceptability within the scientific community. This methodology is common in research on sexual predators and pedophiles on one extreme and in product advertising on the other. It is a very reliable methodology.” He placed the report down and looked at the jury.
"Doctor, as to the results of your study regarding the prevalence of racial profiling?" Fleming inquired.
"The results were conclusive. Police officers react in a more extreme and aggressive manner when dealing with black subjects. What we found particularly intriguing is that all other racial types did not have the same effect and, interestingly enough, the race of the officer was statistically insignificant."
"What do you mean by 'the race of the officer was statistically insignificant?" Fleming continued the inquiry, walking over to stand near the jury.
"In its simplest terms, it meant police officers reacted consistently to the testing stimuli, regardless of the officer's race. Black and white officers exhibited the same prejudicial indicators with black subjects. There was some differentiation among black female officers; however, even this was minimal."
"Doctor, has part of the preparation for this trial, did you have an opportunity to review the reports relating to the shooting of Mr. Machado?"
"Yes, I did."
"And did you review anything else?"
"I was provided with arrest reports of the East Providence Police Department for the past two years. I analyzed these reports using our statistical analysis program."
"And as to the analysis of the arrest reports, did you draw any conclusion?" Fleming continued.
"The incidents showed a correlation consistency with the reports analyzed during our study. East Providence officers engaged in a pattern of race based profiling. They were a much lower proportional incidence of such behavior. They were less likely than most departments, but nevertheless, profiling did occur."
"I see, and as to the specific incident involving Mr. Machado's shooting?"
"The pattern is consistent with a prejudicial assumption the subject was likely involved in criminal activity solely by virtue of his race."
"Objection, your Honor," Hawk was on his feet and angry, "this is taking on the guise of a fairy tale. The government, through this witness, has offered no foundation for this conclusion; the witness has spun a tale that since it is true in New York or LA, it is true here.
The government wants the jury to take the word of this expert, making a determination of a racially biased motive by Josh, after analyzing one report. There is no foundation here your honor, I move the testimony be stricken and the jury instructed to disregard this fallacious nonsense."
"Your Honor, Dr. Kingston is an expert in race relations and, more importantly, one of the foremost experts and researchers in the field of racial profiling by law enforcement. Dr. Kingston, through his well extensive academic, educational, and research background has established a solid foundation on which to base his opinions. The defense will have their opportunity under cross to challenge those, but this witness is more than eminently qualified to state his findings. As you heard him testify, he is not basing his conclusions on one report, but on an analysis of all arrest reports by the East Providence Police Department covering a two-year period. Those findings are consistent with the national research conducted by Dr. Kingston."
"Your objection is noted and overruled. You will have your opportunity in cross. Please continue, Ms. Fleming."
"Thank you, your Honor." Fleming returned to her table and retrieved a second document, "The government moves to have this marked as government sixteen for identification," handing the document to the clerk, "May I approach?"
Rodericks nodded.
"Doctor Kingston do you recognize this document?" Fleming inquired.
"Yes, I do. It is the report I prepared after reviewing the statements and evidence in this case."
"Government moves to have the marked as full exhibit, government sixteen."
"No objections," Hawk agreed, again beating the Judge to the punch line.
"Doctor, would you please read from the highlighted page twenty-five?" Fleming leaned back on the table, watching the jury, hanging on the Doctor's words.
Fleming counted on the fact that somewhere in the past the minorities experienced some negative contact with the police.
"...based on the analysis of the data relating to incontrovertible evidence of racial profiling within the East Providence Police Department, the behavior of Sergeant Williams in his pursuit of Mr. Machado, into the church, alone, r
eflects an attitude of superiority characterized by assumptions of culpability based on race, which is prevalent within the agency and consistent with Sergeant Williams behavior in this matter.
In conclusion, it is my opinion that Sergeant Williams’s actions reflect a specific and deliberate decision to terminate Mr. Machado's life solely based on race. Any subsequent mitigating justifications were factually unknown at the time and irrelevant to this determination."
"Thank you Doctor Kingston, I have nothing further."
Rodericks looked to the jury, "ladies and gentlemen, we will stand adjourned for lunch. Please refrain from discussing this matter. We will resume at 1:00PM. Marshal, please escort the jury."
After the jury door closed, "Doctor Kingston, you are excused until 1:00PM as well," looking to the court, "are there any other matters to discuss before I adjourn?"
"Nothing your Honor," Fleming answered.
"Not at the moment, your Honor, I am sure this afternoon will be quite different," Hawk replied, staring at Dr. Kingston as he passed by.
"I am sure it will, Mr. Bennett. I am sure it will. Court stands adjourned."
Chapter 52: Different Story
The jury returned to the courtroom.
Hawk watched, marking lines on his pad. As soon as the jury returned, he slid the pad to Josh, "Know what that is?"
"Ah, no."
"The number of jurors that looked at you, counts going up, happy?"
"Jeez, Hawk, really?"
"I've been doing a daily count, you're on the rise. If you were running for office it'd be time to ask for more contributions."
Josh just shook his head and took out his notebook.
"Got any words of wisdom in there for me, son?" Hawk smiled.
"Are you ready for cross, Mr. Bennett," Rodericks intoned from the bench.
"Ready, willing, and adroit,” rising from his seat gathering notes.
Collision Course (A Josh Williams Novel) Page 19
