"Adroit? Perhaps you meant able?" Rodericks questioned.
"Same thing, but on steroids your Honor."
Rodericks looked at the jury. Several were smiling. We will see, Mr. Bennett, we will see.
"By all means, proceed."
"Thank you your honor," looking at a report, and then moving toward the witness before turning to the jury.
"Dr. Kingston, this report on racial profiling was it written by you personally?"
Kingston appeared confused, and then rose to the bait, "If you mean did I personally type it out, no. I have assistants for that."
Arrogance is an addicting drug.
"I am sorry Dr. Kingston, let me rephrase. Is the report the result of your effort exclusively?"
"Ah, I see. No, it was the result of a cooperative effort of a number of experienced researchers, postdoc, doctoral, and undergraduate students, as well as a number of professional research assistants."
"And did you author the conclusion?"
"I did," smiling and nodding to the jury.
"And how was this conclusion reached, was there a vote?"
"Sir, let me familiarize you with research methodology and reporting. In a study such as this, the senior research fellows each prepare an analysis of their conclusions. As the main author of the study, I prepared the overall study analysis."
"I see. Let me make sure I understand this. Is your conclusion the, ah, only valid one based on the study results?"
"The conclusion I prepared is a result of the synthesis of the data, my reading of the other reports, and the benefit of my vast experience in these matters."
"I see, thank you Doctor. Now, how many other senior researchers wrote conclusions?"
"There were seven main research fellows, including myself."
"Ah, so you are the one that breaks the tie?"
"I don't understand the question." Kingston began to fidget a bit.
"I assume that since there are six other researchers, there must have been three the agreed with you and three that disagreed. Is that not true?"
Kingston paused, took off his glasses, and wiped his eyes. "This is not a vote sir; it is a research project where we follow accepted guidelines and practices."
"I see then. Well, of the six other senior, experienced, eminently qualified researchers, how many agreed with your conclusion?"
"Once again sir," leaning forward grabbing the rail, "this is not a popularity contest this is...."
"Your honor, would you please instruct the witness to answer the question, if he doesn't understand it I will simplify it."
"Save the sarcasm, Councilor. Dr. Kingston please just answer the question."
Kingston sat up a bit straighter, looked at Hawk, and said, "All of the other researchers drew, in varying levels of intensity, different conclusions."
"I do not mean to beat a dead horse, so to speak, but just so I and the jury understand, there were seven researchers correct?"
"Yes."
"And of the six other researchers, none of them concurred with your conclusion, is that true?"
"Yes, however… “Pausing a moment, "Yes that is true."
"Is it not true that Wyman Janes, the foundation that underwrote the research, has asked for an independent audit of your methodologies?"
"They didn't get what they expected," waving a hand dismissively. "My integrity is not for sale."
"Are you being compensated for your appearance here?" glancing to the jury for a reaction.
"My foundation receives a fee to cover costs and expenses related to my review of all pre-trial documents, preparation time, and consultation efforts," removing his glasses. "My opinion is not subject to any part of that fee. It is honest, forthright, and based on facts and data," sitting back, "I resent the implication."
"Sir, I implied no such thing, I thank you for your answer. What was that fee?"
Kingston looked over to Collucci, no help there.
"Do I have to answer that your honor, I hardly see the relevance."
Rodericks looked up at Hawk, "Is this going somewhere, Mr. Bennett?"
"Your honor, I am just putting the testimony in context for the jury."
"Very well, the witness will answer the question," looking at Dr. Kingston, "no one is challenging your integrity."
"Yes sir, "glancing back at Hawk, “my standard fee for matters involving public entities, local, state, and federal, is fifty thousand dollars. It is much higher for private institutions."
Hawk just let that sink in. Saw the sideways glances among the jury.
Strike One.
"How often have you testified as an expert witness in a criminal matter?"
Kingston was now squirming, shifting his position, "once.”
"I am sorry, did you say once?"
"Objection your honor, "Collucci said, "this is bordering on badgering the witness, we all heard the answer."
"Sustained, Mr. Bennett move on."
"Yes, your honor."
Strike two.
"Dr. Kingston, do you know the name Mustafa Ali Mustafa?"
Kingston's head rose slowly, his eyes burned, leaning forward he said, "Mustafa Ali Mustafa is my son."
"Yes sir, and what does your son do?"
Collucci and Fleming were both on their feet, "Your Honor, where's the relevance here?"
"He doesn't do anything," Kingston was standing, shouting, "He’s dead."
Rodericks slammed down the gavel, "Enough, stop right there Dr. Kingston, do not say anything else."
Kingston sat, hands shaking, trying to hold his glasses, wiping his brow.
"Mr. Bennett, where is this going?" motioning Collucci and Fleming to sit.
"Your honor, I am permitted to ask questions that explore anything evidencing bias."
Collucci was on his feet again, "Your Honor," glancing at the jury, "this is highly prejudicial."
"He has a point Mr. Collucci; I am going to allow this, up to a point which Mr. Bennett will get to soon."
Hawk nodded.
Collucci glanced at the jury and sat down.
Wind up.
Hawk looked at Dr. Kingston.
"Sir, I do not wish to cause you any more anguish, how is it your son is dead?"
Kingston took a deep breath, looked at the jury, trying to control the tears, "He was killed by a police officer."
Strike three.
"And was that officer white?" Hawk asked, watching the jury's reaction. "Withdrawn, your Honor," short circuiting the inevitable objection.
Collucci looked at Fleming, "How did we not know this?" he whispered.
"You didn't want to pay any more money to vet the witnesses. You found a damn report you liked and bought it without researching the person. What did you expect?"
Hawk walked over and sat. Looking at Josh, he motioned him in, "Son, I cutting my fee in half. That shit was fun."
Josh rocked back.
"Not really, but it was fun."
Chapter 53: Reasonable Doubts
"What if I did shoot him because he's black?" Josh said, sitting at the bar at Hemenways.
"What are you talking about?"
"Maybe I do have deep-seated prejudice toward blacks."
"And why would that be?" Hawk raised his eyebrows, turning his head to face Josh.
"I was mugged once, well almost, at the Brown football stadium. I was eleven. We went to a game with my Boy Scout troop. I went underneath to use the bathroom and an older black kid grabbed me, put me against a wall and tried going through my pockets. Someone came along, and he let me go. I ran back and never told anyone."
Hawk put his hand on Josh's shoulder.
"Josh, several hundred Viet Cong tried to kill me at one time or another. I didn't like it much then, but I don't go around trying to kill every Asian I see. Do not let this guy mess with your head. This is all psychobabble political correctness bullshit. Now enjoy the drink and forget about the trial for the moment."
"There's something else." Josh added.
Hawk turned, facing Josh, "Now what?"
"It's a long story."
"I got all the time in the world, son. My martini is chilled, and I've nothing to do but listen."
"When I was in the Air Force, right out of Basic Training, I was assigned to the Security Police Training School at Lackland. We were assigned two to a room, and I ended up with a black kid from Baltimore named Nathaniel Archibald, we all called him "Archie."
Taking a drink from his wine, Josh continued, "We took the weekend off before training started so we just kind of hung around, drank beer, and relaxed. There was this kid from Texas; he was in the same Basic Training flight, sort of a typical redneck. Anyway, one day he gets me aside and says 'why you roomin' with the nigger?''
I thought he was joking so I said, 'What? Archie, he's a great guy.' I could tell by the look on his face the guy was serious, so I just walked away, I didn't say anything to Archie, and we never had any other problems."
"So, what is the issue?"
"I should have done something, punched the guy, anything. I mean, hell, growing up in Cumberland, we didn't have much contact with minorities. I think Archie was the first black person I ever spoke to in my life."
"Josh, punching some redneck wasn't going to change his ingrained prejudice any more than it would demonstrate your lack of such beliefs. I learned a long time ago not to let the past control you, other than learning from your mistakes."
"Wait, there's more."
"Let me get another drink," waving to the bartender.
"About a year after I got on the job, I pull up behind one of our Lieutenants on a car stop. This was an old school, World War II guy about a year before retirement. Anyway, he pulled over a car with four black guys in it. As I walk up, I say 'Hey L T, what do you have?’ He says, 'box of raisins, kid, niggers in a new ride.” Josh paused a moment, looking at Hawk.
"Box of raisins, I get it, so?" Hawk asked.
"I laughed," Josh looked into his glass, "I just laughed. I should have walked away, got into the car and drove off. But instead, I just laughed."
"Josh, let me bring you down to earth son. If you had done that, you'd have caught all sorts of shit for being afraid, or called a pussy, or some such label. Moreover, it wouldn't have made a damn difference to that moron Lieutenant. Look, there is nothing you have ever done to indicate you hold any more prejudices than anyone else does. We all have some fear or misunderstanding of things we have little exposure to. Over time, as you gain experience with people of all colors, shapes, and nationalities, you came to realize we are all the same. Things you did or did not do at nineteen are not an indication of a lifetime of bias. Nor does it have anything to do with this trial, you remember that."
Josh smiled a bit and continued to stare into the wine.
Maybe you do Josh, maybe you do. I was trying to tell you I did good...trying to get you to stop like I stopped Divothead...why didn't you hear me?
Chapter 54: Those That Can…
"The government calls Robert Murphy."
The witness came in the courtroom doors. Murphy, sixty-eight years old, dressed in a dark-gray suit, tidy gray beard, reading glasses dangling around his neck, walked with a pronounced limp to the witness stand, took the oath, and sat down. He looked the part of a banker.
"Would you please state your name and current employment for the record?" Collucci asked, deciding to handle this witness himself, warming up for the coming big show.
"My name is Robert J. Murphy. I am a Partner at Professional Standards Consulting, Incorporated."
"Would you explain to the court what Professional Standards Consulting is and your background?" Collucci looked to the jury, measuring their interest.
"Professional Standards Consulting focuses on assisting law enforcement agencies, both domestic and international, in developing standards for use of force by police officers, security forces, and other agents. I spent thirty-eight years with the FBI, the last ten of those assigned to the Office of Professional Responsibility. Upon retirement, I formed Professional Standards Consulting."
"With the court's indulgence, just a few more points" Collucci said, recognizing Rodericks’ growing impatience. “Mr. Murphy, what are your educational credentials and professional publications?" Collucci could see the jury was interested.
"I hold a Master's Degree in Criminal Justice from University of Chicago, a Juris Doctorate from Georgetown Law, and have published two books on use of force policy development. Both of which are used in a number of Undergraduate and Graduate level Criminal Justice programs, State and Municipal Police Academies, including the FBI National Academy."
"Your Honor, the government moves to have Mr. Murphy qualified as an expert in use of force as it relates to law enforcement."
"Mr. Bennett?"
"No objections, your Honor," Hawk replied.
"Mr. Murphy, let me draw your attention to government exhibit one. Are you familiar with this document?"
"I am"
"And would you please describe the document for the court?"
"Yes, this is a certified copy of the investigative file for case A-2013-9-2145. The Officer Involved Shooting of Anthony Machado."
"And did you have an opportunity to review this file?" Collucci looked to the jury, insuring they were listening. Juries pay more attention when they see you watching them.
Murphy nodded. "I did. I reviewed all the investigative reports in this matter."
"Did you undertake any other review of this matter besides reviewing the report?"
"I did. After doing a thorough review of the reports, I visited the site of the shooting and re-enacted the various actions reported by Sergeant Williams and the other officers at the scene."
"Now Mr. Murphy, based on your extensive background and experience, did you find anything about the reports that were of concern to you?"
"I did, if I may, a little background on appropriate use of force and the hierarchy of escalation of force would be helpful in clarifying my findings."
"Please, proceed,” Collucci retreated and stood next to the jury.
"Objection, this is turning again into story telling time allowing for narrative by the witness," Hawk argued.
"Your Honor, if it pleases the court, I will elicit this testimony through questioning the witness, but as a recognized expert, he is permitted to set an explanatory basis for his finding as defined in Federal Rules of Evidence, Rule 702." Collucci responded.
"Overruled, you may continue Mr. Murphy," Rodericks concluded.
"Over time, law enforcement agencies have tried to build a rational, understandable, and defensible use of force model for officers. The first of these is Use of Force Continuum. The concept is of an officer, starting with the minimum use of force, following the continuum of escalation until the lawful purpose is accomplished. These models were controversial in that some interpretations implied a requirement to follow the continuum regardless of the level of the threat present. The model, in most cases, conflicted with an objectively reasonable level of force.
Most agencies, and my consulting team, now rely on a force options model. This is more in line with court decisions. This policy provides a more realistic, and therefore safer, approach to use of force, both for the officer and suspect. By way of example, when an officer is facing an armed individual, it is objectively reasonable that he not go through a list of force options, voice command, baton, pepper spray, Taser, before resorting to deadly force, or at least the threat of deadly force.
The key point being agencies now develop and implement policies that give officers force options to deal with threats. The emphasis is still on using just the minimum force necessary to accomplish the lawful purpose, which may, in fact, be deadly force under some circumstances."
Pausing to take a drink of water, Murphy continued, "In this matter I reviewed reports from Sergeant Williams, Lieutenant Hamlin, forensic investigators, Medical Examiner, and Father Swanson. I also reviewed the policy and p
rocedures, in particular, the use of force policy, of the East Providence Police in effect at the time of the shooting, and the department training records."
Collucci moved to stand between the jury and Murphy, blading his body to allow him to look between them, "And did you draw any conclusions from this analysis?"
"My review of the policy and procedures of the East Providence Police led me to conclude they are consistent with the most up-to-date recommendations of the United States Department of Justice and latest court decisions regarding use of force. These policies and procedures are also quite comprehensive in detailing tactical methodology for responding to high-risk level incidents such as armed robberies, hostage situations, and other matters.
My review of the training records shows that the East Providence Police use a multi-phase approach to training. Combining role call instructions, memos, and monthly reviews of training and policy matters. They conduct a mandatory situational shoot/don't shoot training session using the latest in available computer-based weapon's training. The records indicated that Sergeant Williams last participated in this training process the month prior to this incident."
Pausing again, Murphy looked at Josh and then turned toward the jury, "Based on this review, I concluded several things. First, Sergeant Williams was fully aware of the policy and procedures of the department regarding high-risk situations. Second, Sergeant Williams’s decision to enter the church alone, without assisting officers, nor waiting for a properly established perimeter, was in clear breach these policies. Sergeant Williams’s action was a tactical error of judgment absent any compelling reason to do so. This escalated the potential for a deadly force encounter. Third, by positioning himself as a direct threat to Mr. Machado, lacking any factual indication of his participation in the robbery, he again escalated the situation.”
Taking another drink of water, he noticed Hawk furiously writing notes. As he spoke, he could not control glancing at the defense table.
“To summarize, based on the facts known to Sergeant Williams at the time, as reported by him, his decision to enter the church alone, position himself within an unavoidably dangerous proximity to Mr. Machado, was a significant tactical error. These actions escalated the situation and set in motion an unstoppable series of actions, leading to the death of an unarmed man.”
Collision Course (A Josh Williams Novel) Page 20
