Barely Legal

10

Judge Buckingham resumed the bench. “Court is in session. Before the jury is brought back into the room, are there any matters the attorneys wish to bring to my attention?”

ADA Grover was on his feet. “Yes, Your Honor. I believe the defense and the prosecution have agreed on a verdict.”

“Is that so, Mr. Fisher?”

Herbie stood up. “I’m afraid not, Your Honor. The defense has no interest in discussing a plea.” He added, “We would have no objection to a dismissal or a directed verdict of not guilty, however.”

ADA Grover nearly choked. “A dismissal?” he sputtered. “Why in the world would we want to dismiss this case? I—”

Judge Buckingham banged the gavel. “That will do, Mr. Grover. Such outbursts are uncalled for. The court notes your disinclination to dismiss.”

“Your Honor,” Herbie said, “in light of the fact that this case could not be settled out of court, I would ask for a continuance until such time as Mr. Ross’s attorney, James Glick, is able to join us.”

“Mr. Glick asked you to act on his behalf?”

“That’s right.”

“Do it, then. The motion for a continuance is denied. Bring in the jury.”

As the court officer went to get the jury, David Ross grabbed Herbie by the sleeve. “What are you going to do?”

“The only thing I can think of.”

“What’s that?”

“Stall. I’m not going to let the witness get off this stand until court adjourns, and your attorney can take over tomorrow.”

“My attorney sold me down the river.”

“Your attorney got you a very good deal, but he’s not going to force you to take it. And your attorney knows how to cross-examine prosecution witnesses. I’ve never handled a criminal case before.”

“What? Why didn’t you say something before?”

“I didn’t think I’d find myself in the position that it would matter!”

“Christ.”

“Do you want to take the plea bargain?”

“No!”

“I’ve told you my limitations. I’ve told you what I’m going to do. If you don’t like it, fire me, and Judge Buckingham will assign you a public defender.”

The jurors filed in and took their places in the jury box. There were fourteen of them, twelve jurors and two alternates.

“Mr. Prosecutor. Call your first witness.”

“I call Detective Marvin Kelly.”

Detective Kelly was sworn in and took the witness stand.

ADA Grover approached the witness. “Detective Kelly. What is your occupation?”

“I am an undercover agent in the narcotics division of the police department.”

“And how long have you been a policeman?”

The detective cleared his throat. “I am a graduate of John Jay College of Criminal Justice. I joined the police force—”

Judge Buckingham interrupted. “This is the point, Mr. Fisher, at which you stipulate Detective Kelly’s qualifications subject to the right of cross-examination.”

“Yes, Your Honor. So stipulated.”

“I’m afraid I can’t speak for you, Mr. Fisher. You will have to speak for yourself.”

“Yes, Your Honor. The defense stipulates Detective Kelly’s qualifications subject to the right of cross-examination.”

As ADA Grover nodded thanks to Herbie, his face could not help but betray his amusement.

“Detective Kelly, on the night in question, were you present at a party in a dormitory at Columbia University?”

“I was.”

“Were you dressed as a police officer?”

“I was not. I work undercover. I was dressed like someone who might attend such a party.”

“As a college student?”

“I’m a little old for that. Perhaps a recent graduate, or a rather hip professor.”

“And what did you do at the party?”

“I tried to fit in. I drank and flirted with girls.”

“How did that go over?”

“Not bad. Nobody questioned my presence.”

“And why were you there?”

“I was acting on information that the defendant was selling drugs at the party.”

“So you hung out and mingled?”

“That’s right. And conducted a surreptitious surveillance of the subject.”

“And what did you observe?”

“The defendant spoke to several students at the party.”

“And what did the defendant do on those occasions?”

“He left the room with the person he was talking to and returned minutes later.”

“And were you ever close enough to hear what the defendant and the other person were saying?”

“No, I was not.”

“Did you personally talk to the defendant?”

“I did.”

“What did you say?”

“I asked him where the john was.”

The answer drew smiles from the jurors.

“And did he tell you?”

“He was most helpful.”

“And did you go?”

“Yes, I didn’t want to blow my cover.”

“Did you speak to the defendant again?”

“Yes, I did.”

“What happened on that occasion?”

“I walked up to him, showed him my identification, and asked him to empty his pockets.”

“What did he do?”

“He refused.”

Grover raised his eyebrows in feigned incredulousness. “He refused to comply with a request from an officer of the law?”

Herbie stirred restlessly. He knew he couldn’t let Grover get away with theatrically underlining the testimony against his client.

“Objection, Your Honor.”

“On what grounds?” Judge Buckingham said.

“Already asked and answered.”

“Sustained. Mr. Grover, move it along.”

“Yes, Your Honor. And when he refused, what did you do?”

“I placed him under arrest and searched him myself.”

“What did you find?”

“In his jacket I found an envelope containing three small plastic bags. Each plastic bag contained a gram of a white powdery substance which subsequently proved to be cocaine.”

“Did the defendant say anything at the time?”

“Yes. He said, ‘That’s not mine.’”

“‘That’s not mine?’”

“Yes.”

“With regard to the envelope you found in his jacket pocket?”

“That’s right.”

“Was that an outside pocket?”

“No, it was an inside pocket.”

“Let me be perfectly clear. The defendant was wearing the jacket at the time?”

“That’s right.”

“What kind of jacket was it?”

“A sports jacket.”

“Like he’s wearing now?”

“Yes, only more casual. The one he’s wearing now appears to be part of a suit. This was merely a sports jacket.”

“But essentially the same type of jacket, with inside breast pockets?”

“That’s right.”

“And it was in the inside breast pocket that you found the envelope containing the packets of powder?”

“That’s right.”

“The defendant had the envelope in the front interior pocket of his sports jacket?” Grover shook his head, let the jury share his incredulity. “The envelope of which he said, ‘That’s not mine’?”

“That’s right.”

“After the envelope had been removed from his pocket, what did you do with it?”

“I placed it in a plastic evidence bag and wrote my name on it.”

“And was that evidence bag sealed?”

“It was.”

“What did you do then?”

“I handcuffed him and took him in.”

“And did you make any subsequent inspection of the defendant’s possessions?”

“I searched his dorm room and his locker.”

“What did you find?”

“I found nothing of significance in his dorm room. In his locker, however, I found approximately half a kilo of a substance which later proved to be cocaine.”

ADA Grover nodded his approval. “And, going back to the envelope you found in the defendant’s jacket pocket, the one containing the three small packets of a white powdery substance. When the defendant said the envelope wasn’t his, what did you say?”

“I asked him whose it was.”

“And what did he say?”

“He said he didn’t know.”

Again, ADA Grover let the jury see his skepticism. “He claimed he didn’t know whose envelope it was he was carrying around in his pocket?”

“That’s right.”

“Did you ask him anything else about the envelope?”

“Yes. I asked him what the white powder in the packets was.”

“What did he say?”

“He said he had no idea.”

“Let me be sure I have this perfectly clear. There was white powder in the gram bags in the envelope in the defendant’s interior breast pocket of his sports jacket, and the defendant said he didn’t know what it was?”

“That’s right.”

ADA Grover favored the jury with an incredulous shake of the head before turning to the defense table.

“Your witness.”