Path to Justice

by Jim Dutton

  They moved on to the center of the diagram. Fresh oil stains, and ejection patterns of the 200 or so casings from the 50 caliber machine gun, showed that the Humvee was located in the center of the street, approximately 70 feet from the front wall of the residence. Twenty casings were found on the other side of the Humvee, suggesting the machine gun had rotated 180 degrees to fire at Agent Schwartz’ oncoming vehicle. The FBI ASAC looked at Drummond. “Your agent sure has a huge set of balls to drive straight into 50 caliber fire.”

  Nick responded, “Do I ever know that. I’m just trying to keep her balls and the rest of her intact.” Nick knew that the FBI ASAC had given Ana the highest form of compliment. “What about the rockets?”

  Jasco answered, “The forensics techs from Fire and PD confirmed that three high velocity rocket grenades were fired into the house from the Humvee. From grenade residue in the house, they’ve been identified as 93mm heat warheads. They leave anything they hit demolished and in flames.”

  The far lower right of the diagram set out the torched Humvee in the vacant lot. Jasco, exasperated, said, “They did a good job torching it. No trace evidence, no title documentation, not even a chewing gum wrapper. However, with chemical assistance, we were able to bring forth the VIN number. We traced the VIN to an army surplus sale two years ago in Kansas City. We’re still checking on the sale transaction records. We’re also making some progress on the trail of red drops from the Humvee to the curb across the street. A random sample of the drops tested positive for human blood. The FBI lab is testing the blood for DNA. They can get it out faster than our lab.”

  Nick asked, “Did anyone see the vehicle they must have left in after they torched the Humvee?”

  Jasco said, “We have canvassed the entire neighborhood. A few people remember seeing a late model, dark-colored sedan driving slowly away from the area of the burning Humvee. No consensus on the make or model and no license plate number. Most of the neighbors say there were two or three, darker skinned men in the car. Which means darker than white in this community. No further descriptions at this point. But, speaking of vehicles. It may be nothing, but a neighbor, close to where Agent Schwartz crashed into the pole, looked out from drawn curtains of her window and saw a sedan slowly drive by her smashed car in the opposite direction of the Humvee assault.”

  SAC Poon came into the command center. After introductions and condolences about Deputy Perkins’ critical condition, the others filled Poon in. Afterwards, Nick took him aside. Poon said, “I’ve been briefed on the San Diego case. Our agency is at your disposal to get the sons-of- bitches who did this and help with your case.”

  “Being your poor state cousins, we often hear how our federal cousins are awash in money. Does your agency have a private jet that could fly Felicia directly to San Diego?”

  “We do and we can. I’ve already spoken to the Director of our agency and he’s given me carte blanche in this case.”

  “Montgomery Field is a small public airport, just minutes north of downtown San Diego. I believe it can handle a small private jet. If not, hopefully landing rights will be granted at Miramar Naval Air Station, also minutes north of San Diego. For security reasons, I want to avoid having Felicia fly by commercial airline into the main San Diego International Airport. If you would, please coordinate with my team member, HSI Special Agent Jerry Slater, for the airport pick-up and secure transport to the courtroom. We want her to testify at 9:00 a.m. on Thursday morning and fly out of San Diego at the end of that same day to a new location of your agency’s and her choosing.”

  “We can do this.”

  “Thank you.” Nick gave Agent Slater’s number to SAC Poon. “The only thing I need to do now is to sell it to Felicia. I’m seeing her tomorrow morning. Please set up the flight and I’ll either confirm it or call it off after I meet with her.”

  Nick went back inside to talk to Lieutenant Jasco. He agreed to email copies of all photos and reports on the attack to Rona. For the next 30 minutes they walked around the crime scenes. Nick didn’t think he could be shocked anymore by human behavior. He was wrong. The leveling of Felicia’s home by military grade weapons shook him to his core. The unimaginable in the United States had happened—a different world from the one he grew up in.

  Nick checked into a hotel near the hospital, took a quick shower, and went down to the cafe on the ground floor to grab dinner. Salisbury steak, mashed potatoes, and green beans seemed Midwestern enough. He gobbled it down and went back to the hospital.

  Nick politely knocked on Ana’s closed door. “Ana, it’s me, I have something for you.”

  “Come in. I love gifts.”

  “Three chocolate and three raspberry rugalach. I admit, I ate a seventh before I even left the deli.”

  “You wouldn’t be the man I’ve come to love if you didn’t. Let’s not waste any time. We need to eat them all right now.”

  “Ana before I forget, did you see anybody in a vehicle parked in the vicinity of your crash?”

  Ana closed her eyes. She grimaced and shook slightly. “The last second, before the machine gun opened fire on me, is etched in my mind. I looked up the street to my left to take an evasive maneuver. I was aiming for a lawn just beyond the pole. I remember a car parked on the curb at the far side of the lawn. I believe it was a Volvo. I’ll never forget, the male driver had a smile on his face. I swerved left at the same time that machine gun bullets slammed into the back of my car, which directed me into the pole.”

  “Is there anything else you can remember about this man?”

  “Not really. He seemed to have dark hair and was youngish, but, not a teenager or anything.”

  “Sorry to put you through the flashback. Let’s change the subject. When are they letting you out of here?”

  “I’m negotiating with the doctors. So far they’re winning. They’re saying, at the earliest, the end of the week. I’m not supposed to fly until they completely clear me on my concussion.”

  They spent the rest of the evening talking quietly and holding hands. Ana dozed off. Nick left a note at her bedside and slipped out of the room.

  The next morning Nick was at Felicia’s bedside. Color was back in her cheeks. “How are you feeling today?”

  “Much better. I took a few laps around the hospital floor and didn’t need a cane. My sprained ankle is on the mend. Just a limp. They told me I can be discharged tomorrow, or Thursday morning at the latest. Dr. Lepinsky even signed off on it.”

  “Great! I’m so glad you’re feeling better. On a different note, have you given much thought about flying out to San Diego on Thursday?” Nick noticed the fear spread across her face and her eyes dilate. “Before you say anything, the Marshal’s Office will do absolutely everything to insure your safety. A private jet with a security detail will fly you out on Thursday morning in time for court in San Diego at 9:00. You won’t even be landing at Lindbergh Field, the international airport, but instead at Montgomery Field, a smaller airport in north county. You can testify on Thursday and fly out the same day to a new location that you and the Marshal’s Office agree on. I won’t even know for now. Until at least the convictions come in, an agent will be with you full time.”

  “Nick. Can I call you Nick now?

  “You can, we’re way past Mr. Drummond after all you’ve gone through.”

  “You can stop the hard sell. I’ll go. Ana left just before you came in. She’s the one who walked me around the corridors. We’re in it together. There’ll be no peace for either of us until they’re put away for good.”

  “You have my word that I’ll do my very best to see that come about.”

  “I know you will Nick.”

  Nick took the stairs down two floors to Ana’s room. He felt like leaping in the air and screaming for joy. He didn’t believe Felicia could be convinced so quickly. Leave it to Ana. The trial was saved. Nick burst into Ana’s room. “I don�
�t know what to call you—Iron Lady Margaret Thatcher or Mother Teresa. Somehow you got Felicia to go.”

  “We had a sisterhood bonding. We’re in this together. She knows she has to testify and we have to do everything we can to support her and convict these assholes.”

  “As you wish. It will be done. I’ll see you this weekend.”

  “Thank you for the note. It put a smile on my face when I woke up.”

  Nick made calls to SAC Poon, Pepe, Josh, and Rona from the taxi to the airport. Poon confirmed that a private jet would be ready to fly Felicia to San Diego on Thursday morning. They were cleared to land at Montgomery Field. Pepe would pick Nick up today at the airport at 3:30 p.m. to rush him to the 4:00 court appearance. Nick told Josh he’d be in court at four. If he was a little late, to stall. Josh filled Nick in on the law to admit the assault evidence.

  “Mr. Sterling, it’s 4:02. Where is your colleague, Mr. Drummond?”

  “Well, well, Your Honor. aaaah.”

  “Speak up Mr. Sterling. Has a cat got your tongue?”

  “No, Your Honor. Mr. Drummond just called in. He was just left off in front of the courthouse.”

  “I hope so for your sake. The prosecution will start argument at 4:05.”

  Judge Orsini retired to his chambers. Josh paced behind counsel table. The three defense attorneys were smirking. Josh muttered under his breath, “Run you son-of-a-bitch. It’s my ass on the line.” Judge Orsini stormed back into the courtroom. He was about to live up to his nickname, “Fire and Brimstone”.

  Simultaneously, with a pound of the gavel, the courtroom door slammed open. In strode Drummond, with a smile on his face. “I’m here Your Honor, straight from Topeka, Kansas. I apologize for being late. I didn’t even wait for the elevator. I came up the stairs as fast as my knees could carry me.”

  “I can see you’re here counsel. Start your argument!”

  “To summarize, the safe house in Topeka, Kansas, where our protected witness was staying, is a blackened rabble. Three high velocity rocket grenades were fired into the house from an army surplus Humvee after the front of the house was strafed and penetrated by armor piercing, 50 caliber bullets. Against all odds, the witness managed to survive, in shock, with minor physical injuries. Deputy United States Marshal Lily Perkins, who was inside the home at the time of the Sunday evening attack, was not so lucky. She’s still in a coma, with a swollen brain and numerous broken bones. It’s unknown whether she will survive. Special Agent Ana Schwartz, also a witness in this case, and victim of the drive-by that attempted to kill the same protected witness, was fired upon by the Humvee machine gun as she drove towards the house. She has a concussion and is still hospitalized in Topeka.”

  Nick continued, “My co-counsel has already provided to defense counsel a two page memorandum on the admissibility of the assault into evidence in trial. If I may approach Madam Clerk, I would like to have this filed with the Court.”

  “We object to the filing of the memorandum. We only received it 10 minutes ago, without prior notice.”

  “Mr. Flanigan, considering that this hearing was only ordered yesterday, about an incident that happened less than two days ago, no additional notice can reasonably be expected. I’ll consider the memorandum. Do you have a memorandum for me?”

  “No, Your Honor. I ask that we be allowed to file points and authorities.”

  “Mr. Flanigan, after I make my ruling today, if you choose, you can file your authorities as part of a motion for reconsideration tomorrow at 8:30, before the jury is brought in. I trust that won’t interfere with any dinner plans.”

  “No, Your Honor. I enjoy eating fast food at my desk.”

  “Proceed Mr. Drummond.”

  “As set forth in our memorandum, only the three defendants could be responsible for ordering the horrendous attack. The intended victim, defendant Lopez’ former live-in girlfriend, was already the subject of one attack. That incident is the basis of two counts in this case, one being conspiracy to commit murder. After their unsuccessful motorcycle drive-by, defendant Lopez told the cartel accountant that we’d not be seeing the bitch anymore, referring to Felicia, and that she was being taken care of. Every Sunday, for the last several months, Mr. Lopez has been visited by his cousin, Jaime Hernandez-Salgado. Last Sunday afternoon, jail authorities uncovered a note courier scheme between Lopez and his cousin, using a trustee who hid notes from Lopez under a sink in the bathroom, off the jail reception area. Last Sunday’s note, which has been authenticated as being in defendant Lopez’ handwriting, said, I can’t wait for this evening’s Kansas weather report. L. It is clear the defendants orchestrated this attack.

  Three different legal bases support the attack coming into evidence. One, the attack shows a continuing course of conduct of violence by the cartel towards the protected witness—showing the common intent with the motorcycle drive-by to silence her forever. Two, we’re planning to have the witness testify by the end the week. She’s been in shock and, understandably, is expected to be in great distress when she testifies. The jury is entitled to know the reason for her distress to help evaluate her demeanor as it relates to her credibility. Third, the attack shows the defendants’ consciousness of guilt. They want to take out a key prosecution witness. They know they’ll be convicted if she testifies and is believed by the jury.”

  “Mr. Flanigan.”

  “Thank you, Your Honor. First, only two of the three defendants are charged with the counts involving the motorcycle drive-by. Those counts against my client, Mr. Encinas, were dismissed by Your Honor for lack of evidence. There is also a lack of evidence tying the Topeka attack to any of the three defendants. So a family member visits Mr. Lopez each Sunday. Jail authorities found one note, which the prosecution says has been authenticated as Mr. Lopez’ handwriting. The note makes some obscure reference to the weather in Kansas. That doesn’t prove anything.”

  “Finally, if this Court deems that the evidence is relevant to just one of the defendants, how can the evidence possibly come in without prejudicing the other two defendants the evidence doesn’t pertain to? This evidence shouldn’t come in. If it’s allowed in any fashion, I expect this case will eventually end in a mistrial. The evidence is that volatile and prejudicial.”

  “Thank you Mr. Flanigan. Counsel can relax for a few minutes while I read the People’s memorandum.” As Judge Orsini was reading, the opposing groups of counsel were quietly huddling.

  Nick whispered, “Josh, if this only comes in against Luis, we may have to pick another jury for the defendants that the evidence doesn’t pertain to. That could be a nightmare and a huge pain in the ass.”

  Judge Orsini swung his gavel. The attorneys immediately shut up and looked towards the judge. “There’s enough evidence to tie Mr. Lopez to the attack, not the others. They’re being housed in separate facilities. If it comes in against defendant Lopez, we may need a separate jury for the other two defendants so the second jury won’t hear this evidence. I agree with Mr. Flanigan that this evidence is highly volatile. Alternately, I could allow the evidence in only to explain the witness’ demeanor as it relates to her credibility, with an admonition to our current jury to not consider who engaged in the attack or who was in any way connected to it. Any thoughts Mr. Drummond? It’s your evidence.”

  “Can I have a minute to confer with Mr. Sterling?” Judge Orsini nodded. Nick and Josh turned away from the defense and the court. Nick whispered, “Josh, we’re screwed. If we push for it coming into evidence against Luis, we’re looking at a second jury panel. That could delay the case quite a bit, and the judge might decide to start over with two new panels. And I like our panel. If it comes in for demeanor only, with an admonition, we have a built in appellate issue because the attack is so inflammatory. Also, it doesn’t add much to explain Felicia’s demeanor. We already have ample evidence to show why she will be distressed on the stand, with the drive-by and Luis
punching her out.”

  “Nick, I agree. I don’t see a way out of this.”

  “Your Honor, upon further consideration, and with the benefit of your analysis, we withdraw our motion to present evidence of the Topeka attack.”

  “That settles it. We’ll see you tomorrow morning.”

  Nick knew he shouldn’t look over at the defense when he was helping pack the prosecution materials. But, he couldn’t resist. Luis’ lips were upturned slightly, in a cold, penetrating smirk. The anger in Nick continued to build.

  Nick, in a barely controlled voice, rasped, “Josh, let’s get the hell out of here. I can’t stand the sight of the defendants any longer.”

  CHAPTER THIRTY-TWO

  Nick closed his eyes and tried to relax at counsel table, waiting for the jury to be called in. He hadn’t slept well the night before. He had prepped Biker Sue and Wildfire Drury during the evening at the office. Josh was going to handle Drury’s sidekick, Zack Reynolds, the former Bakersfield Detective. Biker Sue should entertain the jurors. She was next to impossible to keep on message. A plain yes or no to a question wasn’t in her repertoire.

  Judge Orsini took the bench. “Anything from counsel before the prosecution calls its first witness?”

  Counsel Lipman responded, “Yes, Your Honor. Defense moves to exclude all prospective witnesses from the courtroom for the duration of the trial.”

  Nick rose quickly to his feet, “No objection except that my case agent, Pepe Cantana, to my right, should be allowed to remain.”