Abuse of Discretion

by Pamela Samuels Young

  “No, ma’am. I have to do what my teachers tell me to do or I’ll get in trouble.”

  “Did two police officers come into the principal’s office while you were there?”

  “Yes.”

  “What did they say to you?”

  “The Asian one, Officer Chin, told me to go into the principal’s conference room.”

  “Did you think you could disobey his order?”

  Sullivan is on her feet. “Objection to the use of the word order.”

  The judge grunts. “Sustained.”

  I rephrase my question. “When Officer Chin told you to go into the principal’s conference room, did you think you could refuse to go?”

  “No, ma’am. I had to do what the police officer told me to do. Just like I have to obey my teachers.”

  “Did the police officers tell you that you didn’t have to go into the principal’s office if you didn’t want to?”

  “No.”

  “Did they close the door when you went into the principal’s office?”

  “Yes.”

  “Did you think you could leave?”

  “No. I had to stay there until they said I could go. I thought I was under arrest.”

  “When they started asking you questions, did you tell them you didn’t want to talk to them?”

  “Yes. I kept telling them that my dad told me not to speak to the police without his permission. But they ignored what I was saying and kept asking me questions.”

  “How many times did you tell them that your dad told you not to speak to the police without his permission?”

  “A lot.”

  That wasn’t the answer we had rehearsed.

  “Do you remember how many times?”

  There’s a flash of recognition in his eyes as he suddenly recalls our prep session. “At least four or five times.”

  “So when Officer Chin testified that it was only once, that wasn’t the truth?”

  “No, it wasn’t. He said a lot of things that weren’t true like—”

  I hold up my hand. We instructed Graylin to follow my lead and not jump ahead of me. We also told him that if I raise my hand, that means he isn’t following my instructions.

  “Hold on a minute. We’ll get there.”

  Graylin lowers his head and tucks in his chin. I smile at him, so he’s not devastated by my rebuke.

  “When the police officers asked you for your phone, did you think you could refuse to give it to them?”

  “No, ma’am. That’s why I didn’t tell the truth and told them it was in my locker because I didn’t want to give it to them. But when it started ringing, Officer Chin pounded the table with his fist and said, Give me the damn phone.”

  “How did you feel when Officer Chin pounded the table with his fist and said, Give me the damn phone?” I plan to repeat the cop’s command as many times as I can.

  “I was scared. I knew I had to do what he said.”

  “Where were the two officers sitting?”

  “Officer Chin was sitting on the other side of the table, but Officer Fenton was sitting on my left, really close to me. He was facing me and his knee was bumping my thigh. Like on The First 48 when they’re in a tiny room interrogating somebody trying to get them to confess.”

  I give Graylin a look. We don’t need his embellishment.

  “How did that make you feel?”

  “Scared.”

  “I have no further questions.”

  Sullivan walks over to the witness box and stands even closer to Graylin than I was.

  “Good afternoon, Graylin, my name is Lorelei Sullivan and I’m the prosecutor. I only have a few questions for you. Do you watch legal shows on TV?”

  “Yes.”

  “Have you ever seen Law & Order?”

  “Yes.”

  “What about Boston Legal?”

  “Yes. But Law & Order is a lot better.”

  Jesus. He’s letting his guard down already.

  “And you already mentioned The First 48. So you’re familiar with Miranda rights, correct?”

  “Yes. That’s when you have the right to remain silent.”

  My stomach flips. We instructed Graylin to answer yes or no to Sullivan’s questions whenever possible. Nothing more.

  “That’s right. Did you ever tell the officers that you didn’t want to talk to them?”

  “Um, yes. But not in those exact words. I told them that my dad told me not to speak to the police without his permission. So that’s the same thing.”

  Sullivan wasn’t expecting that response. She moves on.

  “When Officer Chin asked for your phone, what did you think would happen if you didn’t give it to him?”

  Jenny glances over at me. We’re both holding our breath.

  “That he would arrest me.”

  “Okay, so then you didn’t think you were already under arrest when you were in the principal’s conference room, correct?”

  Graylin squints and does exactly what we told him to do if a question confused him. He pauses and thinks about his response before speaking.

  “No, ma’am, that’s not correct. He didn’t tell me I was under arrest yet, but I knew I couldn’t leave the room, so that’s the same thing as being under arrest.”

  “But you said you thought the officers would arrest you if you didn’t give them the phone. So it doesn’t sound like you thought you were under arrest yet.”

  Graylin sits taller in the chair. “What I meant to say is that I thought they would take me to jail. I knew I was already under arrest since they had me locked up in the conference room with them.”

  You go, boy! Jenny and I trade a glance that’s the equivalent of a high-five.

  Sullivan rolls her eyes and plows ahead.

  “When you first sat down to talk to the two officers, you wanted to explain your side of the story so you wouldn’t get in trouble, right?”

  Graylin pauses. “Um, yes.”

  I wince.

  “But not until after I spoke to my dad,” Graylin quickly adds.

  He’s following our directions better than some of my adult clients.

  “Now, didn’t you lie to the police about having a naked picture—”

  Like twin Jack in the boxes, Jenny and I shoot to our feet, shouting in unison, “Objection!”

  “That question is outside the scope of our motion,” I say. “The prosecutor is violating the court’s instruction.”

  Judge Fuller gives Sullivan a chiding look. “Sustained. Don’t test me, counselor.” Then he turns to the defense table. “I only need objections from one of you at a time.”

  Sullivan steps even closer to Graylin and rests her forearm on the corner of the witness box. “You’re a good student, aren’t you, Graylin?”

  “Yes, I get mostly A’s.”

  “Would you say that you’re mature for your age?”

  Graylin squints. “Um, everybody says I’m big for my age. Is that what you mean?”

  I don’t like the path Sullivan is heading down.

  “Not exactly. Do you consider yourself to be very responsible?”

  “Yes.”

  “Give me some examples of how you’re responsible.”

  I tap my fingers on the desk. We didn’t prep Graylin for this line of questioning. I get to my feet.

  “Your Honor, I object to the question as beyond the scope of our motion.”

  Sullivan doesn’t wait for the judge’s response. “I disagree. The defendant’s maturity level is directly relevant to whether his actions were voluntary.”

  “Overruled,” the judge says.

  Sullivan turns back to Graylin. “Can you give me some examples of how you’re mature?”

  “Um,” Graylin looks out at me, but I can’
t help him. “Um, I do my chores and my homework without being told. I babysit my little cousin, Keesha.” He stops and looks up at the ceiling. “I go with my granny to the grocery store and help her with the shopping. I also put a schedule on her calendar so she knows when to take her blood pressure and thyroid pills. Stuff like that.”

  “Wow, that’s wonderful,” Sullivan says, exaggerating her praise. “When you went into the conference room with Officers Chin and Fenton, did they lock the door?”

  Graylin pauses. “I don’t know if they locked it, but they closed it.”

  “Did the officers ever tell you that you couldn’t leave the room?”

  “No. But the way police are always shooting innocent black men, I knew I had to do everything they told me to do, which means I couldn’t leave the room. And I had to give them my phone when they asked for it.”

  I can’t help but smile. He’s not supposed to go off script, but that little zinger was fine with me.

  Sullivan frowns and walks back over to the prosecution table to look at her notes. After a few seconds, she says, “No further questions.”

  Graylin rushes off the stand and returns to his seat. “Did I do good, Ms. Angela?” he whispers.

  “You did great. The best witness I’ve ever had. And I mean it.”

  “Ms. Evans, call your next witness,” the judge says.

  “That’s it, Your Honor. I have no further witnesses.”

  “Let’s take a ten-minute break,” Judge Fuller says. “When we return, I’ll hear brief oral arguments.”

  CHAPTER 60

  The Shepherd

  When I wake up, I have no idea what time it is or how long I’ve been lying on the hard cement floor. Every inch of my body is on fire. My head throbs and even blinking causes me intense pain. I can’t swallow because my mouth is full of dried blood.

  I try to stand, but I’m only able to crawl over to my bed. My knees feel like someone pounded them with a hammer. There’s no way I can protect myself.

  How did Dre Thomas orchestrate this?

  An hour or so later, C.O. Phillips comes with my food. He takes one look at me through the bars and cringes. “What happened to you?”

  “That C.O. on duty last night let two inmates in here to attack me! Oaktown sent them!”

  He opens the door and steps inside. “You want to file a complaint?”

  “You know I can’t snitch! You have to protect me.”

  “I can’t watch you every minute.”

  “I’ll give you whatever you want! Please! I need your help!”

  “Like I said, you wanna file a complaint?”

  “That’ll only make it worse. I’m supposed to be safe in here!”

  “I don’t know what to tell you.”

  “I don’t understand why you won’t help me. I can pay you. Don’t let them kill me!”

  Phillips sets my tray on the floor and turns to leave.

  I sit up, wincing in pain. I have no choice. I have to use my final trump card.

  “If I tell the warden about the cell phones, the drugs and everything else you sneak in here for inmates, you’ll have a real problem on your hands. And that goes for your buddy Sims too. I suggest the two of you put your heads together and figure out how you’re going to protect me.”

  The man’s jaw tightens. “You shouldn’t make threats you can’t back up.”

  I can’t back down now.

  “Oh, I can back it up,” I tell him. “And if I have to, I will.”

  CHAPTER 61

  Angela

  As we wait to begin oral arguments, I now regret eating breakfast this morning, something I never do before an important court appearance. There’s a strong possibility my scrambled eggs could end up splattered on the courtroom floor.

  “You did great,” Jenny tells me. “You got Fenton to contradict his partner more than once. That has to weigh heavily with the judge.”

  “We’ll see.”

  When oral argument commences, I’m first up to bat.

  “Your Honor, the defendant’s motion to suppress should be granted for a number of reasons. First, the police officers conducted a custodial interrogation of the defendant and failed to read him his Miranda rights. Graylin Alexander is a fourteen-year-old kid. No child locked behind closed doors in his principal’s private conference room, with two police officers sitting close to him, bumping his leg, cursing at him and pounding the table, would feel free to leave in such an intimidating situation.”

  Sullivan interrupts me. “Your Honor, there’s no evidence that the door was locked.”

  I ignore her and keep going.

  “In addition, contrary to Ms. Sullivan’s claim, my client did not voluntarily agree to speak to the officers, nor did he just hand over his phone. He was clearly in police custody and should have been read his Miranda rights.”

  Judge Fuller interrupts. “So, Ms. Sullivan, what’s your response? Was this a custodial interrogation?”

  “No, Your Honor, the defendant was not in custody. The officers asked him to come into the room. They didn’t order him in there and at no time was he told he couldn’t leave or that he was under arrest.”

  “Your Honor,” I continue, “my client was marched off to the principal’s office by his teacher and then ordered into a conference room by the two officers. He wasn’t given a choice. This was indeed a custodial interrogation.”

  When the judge doesn’t say anything more on this point, I’m emboldened. “And even if he wasn’t in custody, his actions weren’t voluntary. My client stated—some four or five times—that he didn’t want to talk to the officers without his father’s permission. Still, they ignored his pleas and continued brow-beating him until he answered their questions.”

  Sullivan butts in. “Counsel is misstating the facts. The police officers didn’t—”

  I intentionally talk over her. “Nor did my client voluntarily give them his phone. The fact that he told them it was in his locker when it was actually in his pocket, shows that he didn’t want to give it to them. Their actions in taking it, demanding his password, and looking through it constitute an unlawful search and seizure in violation of the Fourth Amendment. Any evidence they found is inadmissible as fruit of the poisonous tree.”

  Sullivan jumps back in.

  “The officers did nothing improper here, Your Honor. What occurred in that conference room does not meet the level of a custodial interrogation because they didn’t engage in any coercive behavior. The officers didn’t physically harm the defendant. They questioned him for only fifteen minutes. They didn’t deprive him of sleep or food. They didn’t threaten that he was going to spend years in prison. And the defendant is a bright, mature fourteen-year-old. He takes care of his young cousin. He even helps his grandmother with her medicine. He knows how to speak up for himself. He could’ve very easily asked to leave the room or, better yet, he could’ve asked for an attorney. The defendant not only voluntarily gave the officers his cell phone, he even turned over his password. If he didn’t want them to look at it, he could’ve refused.”

  “That’s ridiculous,” I say. “He’s a child.” I turn away from the judge and glare at Sullivan. “He didn’t think he had a choice. Even an adult in his situation wouldn’t have felt free to leave the room. My client wasn’t even free to leave school grounds. He repeatedly told the police that he didn’t want to speak to them without his father’s permission. There would’ve been no need for him to say that over and over again if he wanted to speak to the police as you claim.”

  “Your Honor,” Sullivan counters, “the courts have consistently held that a child’s request for a parent is not the same as asking for an attorney. In any event, the defendant didn’t ask for his father. He stated only that his father told him not to speak to the police without his permission. Yet he chose to disregard his father’s w
ishes. There’s no Fourth or Fifth Amendment violation here.”

  I’m looking at Judge Fuller, but he’s not giving me any clues about where he stands. I take a breath and continue.

  “I’d like to direct the court’s attention to J.D.B. v. North Carolina, which is cited in our moving papers. That case involved a thirteen-year-old boy interrogated at school. The Supreme Court held that interrogations occurring on school grounds are inherently coercive in nature. The court also held that the police must take into account the age of a suspect when determining whether Miranda rights are warranted. No middle school student in the intimidating situation my client was in would feel free to leave.”

  “Your Honor,” Sullivan fires back, “In J.D.B. the Supreme Court did not find interrogations of minors on school grounds per se coercive, as opposing counsel is trying to make out. I assert that—”

  The judge taps his gavel. “Okay, counsel, I’ve heard enough. I’m ready to rule. You may be seated.”

  My legs are wobbling as I return to my chair. Jenny gives me a covert thumbs-up.

  “In J.D.B. v. North Carolina,” Judge Fuller begins, “the U.S. Supreme Court did indeed point out that children will often feel bound to submit to police questioning whereas an adult in the same circumstances would feel free to leave. The courts are clear, however, that even when a minor asks for a parent, that does not mean the minor has invoked his or her constitutional right to remain silent.”

  My stomach drops. Graylin looks over at me, his forehead etched with deep lines of confusion.

  “While the defendant did say that his father told him not to talk to the police without his permission, he continued talking to them anyway, and even turned over his phone to them. On the issue of whether he acted voluntarily, I must side with the prosecution. I also don’t find that the circumstances of the interrogation were sufficiently coercive to rise to the level of a custodial interrogation. The police did nothing to prevent the defendant from leaving the room. It was a relatively short interrogation and he wasn’t deprived of sleep or food.

  “As such, defense counsel’s motion to suppress the defendant’s statements, his phone and any evidence retrieved from the phone is denied. I also find that the prosecution has met its burden of demonstrating probable cause as to each of the charges filed against the defendant.”