Guilt By Degrees

3

I moved swiftly into the courtroom, trying to keep a low profile so Judge Foster wouldn’t notice me. The case before mine was still in play, and defense counsel was making an objection that, fortunately for me, kept the judge occupied. But it didn’t shield me from the wrath of Manny. He gave me a stern look and shook his head. I pointed to the lawyers as if to say, What? No one’s waiting. Manny just rolled his eyes. I took a seat at the back of the courtroom; that way, when they called my case, it would look to Judge Foster like I’d been there all along. It doesn’t matter whether it’s a murder trial or a blind date-it’s always about strategy.

The judge overruled the defense objection, and the deputy district attorney resumed direct examination with the standard nonleading question: “Tell us what you saw.”

The prosecutor looked vaguely familiar, though his name escaped me. He was in his early thirties, and his carefully coiffed brown hair, perfectly tailored navy-blue suit, red power tie, and French cuffs sporting pricey-looking cuff links said that he didn’t have to rely on his civil servant’s salary to pay the rent. Or that he was still getting a free ride with Mommy and Daddy.

The witness, a surfer dude with long, bleached-out hair, stroked his sparse soul patch and licked his lips nervously before answering. “Uh, he reached out toward that lady, and the next thing I knew, he was lying on the ground.”

“And when you saw he was on the ground, what did you do?” the prosecutor asked. “Did you call the police?”

The witness bent his head and hunched over. He looked away from the prosecutor, and his eyes darted between the floor and the top of counsel table for a few long seconds. Finally he sighed and replied in a quiet voice, “No. I, like, I don’t know. I guess I thought he was just drunk or high or something.” The low hum of whispers and shuffled papers suddenly stopped, opening a vacuum of silence around the witness’s last words. The surfer dude reddened, darted another look around the courtroom at all the eyes now fixed on him, and added defensively, “No one else thought it was a big deal either. I mean, no one called…at least, not for a while.”

Every face in the courtroom-with the exception of the prosecutor, who’d been expecting that answer-reflected the ugliness of the mental image those words had painted: of people callously stepping over a man who lay dying on the sidewalk. For me, that image immediately sparked the thought of Cletus, my homeless buddy, who made his bed just south of the courthouse on most Wednesday nights. I’d been bringing him Chinese takeout from the Oolong Café nearly every week for the past couple of years. I imagined Cletus slowly bleeding out onto the cold concrete while people stepped around him as though he were an overturned garbage can. I didn’t know who this victim was, but it didn’t matter. No one should die like that.

“Objection, irrelevant,” the defense attorney said in a bored voice. I recognized him as Walter Schoenfeld, a seasoned public defender. “And no question pending,” he added.

“Sustained,” the judge ruled, his voice equally flat.

It was just a preliminary hearing, so there was no jury and the prosecution only had to show probable cause, not proof beyond a reasonable doubt. That meant the objections, while legally proper, didn’t matter much. The judge could winnow the wheat from the chaff.

“So you saw the man fall to the ground and stay there. What happened next?”

“I saw the cops come, and one of them came into the shop and asked if any of us had seen anything-”

“Objection to whatever the cops said,” Walter interjected. “Hearsay.”

“Overruled. ‘Did you see anything?’ It’s a question. Questions aren’t hearsay.”

“Do I keep going?” the witness asked.

“Yes.” The judge sighed. “Overruled means you’re in the clear.”

The witness went on. “And then Keshia, uh, the other counter person that day, told them she saw me out by the homeless guy before he, ahh…”

Gun-shy after the reaction to his last mention of the man he’d abandoned to die on the sidewalk, the witness trailed off.

“And then you told them what you’ve told us here today?”

The witness nodded.

“You have to answer out loud,” the prosecutor instructed. His duh was implied.

“Yeah, yes.”

“Do you see the man in court who stabbed the homeless guy?” asked the deputy district attorney.

“Wait, excuse me,” the judge said, stopping the witness and turning to the prosecutor. “‘The homeless guy’? He had a name, and I’m sure it wasn’t ‘homeless guy.’ Have the People not come up with any identification for him yet?”

“No, Your Honor. The defense refused to waive time, and so far he hasn’t turned up in any database.”

So not only was he left to die on a city sidewalk but we couldn’t even acknowledge his passing with a name. The sheer loneliness of it all was a lead weight in my chest.

The judge cast a disapproving look at the deputy. “Then, Mr. Prosecutor, the appropriate term would be either victim or John Doe-not homeless guy.” He turned to the witness. “Is the person who stabbed the victim here in this courtroom?”

“Uh, well…” The surfer dude nervously looked around the room.

The prosecutor sighed impatiently. Now it was bugging me-I knew I’d seen him around before. What was his name? I mentally scanned the nameplates on the doors in the DA’s office. It took a moment, but I finally had it: Brandon Averill. Though I didn’t know him, I knew the type. He was one of those young Turks who are self-impressed, self-promoting, always on the hunt for fame and glory, and just handsome enough to entice press photographers. Everything about his attitude said this case wasn’t worth his precious time.

After more silence from the witness stand, Averill became visibly irritated. “Try looking over there,” he said, pointing to the defense table.

The defendant pulled his head down toward his shoulders, shrinking to make himself a smaller target.

Defense counsel jumped up. “Objection! Suggestive and improper! Motion to strike!”

Judge Foster raised an eyebrow. “Are you sure you want me to strike that, Counsel? You can’t think of a way to use that brilliant move in front of a jury?” he said, the word brilliant soaked in sarcasm.

Walter smiled. “Withdrawn.”

“Indeed,” the judge said.

By forcing the witness to focus on the defendant, Brandon had basically tubed his own case. Now, even if the surfer dude did identify the defendant, Schoenfeld would be able to tell the jury that the witness had been strong-armed into it.

The judge’s tone had been relatively mild, given his notorious distaste for all counsel. I figured he must have a soft spot for Walter. Judge Foster was a big man, six feet three barefoot and about 270 pounds. As smart as he was impatient, he didn’t need a microphone to be heard in court. When an attorney got on his nerves-a more than daily occurrence-you could hear it in the cafeteria, five floors below. I’d always liked him because, although he was a tough old bird, he was equally nasty to everyone. In my book, the perfect judge.

The witness did as he was told and looked straight at the defendant, who was so nervous I could hear him sweating.

“Nuh…uh, no,” the witness said in a thin, wobbly voice. “I seen him there, on the street, but I din’t see him stab nobody.”

“But isn’t it true that you told the police at the scene that this man,” Averill said, pointing to the defendant, “was the man who’d done the stabbing?”

The defense attorney was on his feet again. “Objection! Improper impeachment!”

But the judge waved him off. “Have a seat, Counsel. Maybe it is, and maybe it isn’t. But let’s cut to the chase, shall we? It’s just a preliminary hearing. No sense pussyfooting around.” The judge turned to the witness. “Did you tell the police this was the man who did the stabbing? Yes or no?”

The witness rubbed his soul patch, clearly torn. “Well…uh. Not exactly…Your…uh…Your Worship.”

“Just a simple Your Honor will do,” Judge Foster said. “Then what did you tell the police?”

“I just said I seen the dude,” he said, turning toward the defendant, a man named Yamaguchi. “He was, like, nearby, you know? But I din’t ever say I saw him, like, stab nobody, you know?”

Brandon Averill was red-faced. “Wait a minute, you mean you’re denying that you pointed out this defendant at the scene and told the cop that you saw him stab that guy?”

“Yuh…uh, yeah,” the witness said, casting a furtive look at the defendant. “I’m denying it.”

Brandon turned back to counsel table and shuffled through some papers as the courtroom again fell silent, waiting. Judge Foster had just opened his mouth to tell the prosecutor something he undoubtedly wouldn’t be happy to hear when Averill produced a report with a flourish and marched up to the witness stand.

“Isn’t that your name?” he asked, pointing to the top of the page. “Charlie Fern?”

The witness mouthed the words quietly. “Uh, yeah.”

“Then read this statement aloud for us,” the prosecutor demanded, pointing to a line on the page.

“Objection! Hearsay! What the cop wrote on that report is hearsay!” Schoenfeld shouted, again on his feet.

“It is,” the judge agreed. “Sustained.”

Brandon Averill’s mouth opened and closed without sound like a netted fish’s while he tried to grab hold of a thought. “It’s not admitted for the truth of the matter. It’s…uh, well, it’s offered to prove the witness’s state of mind.”

“And this witness’s state of mind is in issue because…?” Judge Foster asked, his tone sarcastic. “He’s here to identify the defendant as the stabber, true or false?”

“True, Your Honor. But I-,” Averill began.

The judge cut him off.

“There is no but, Counsel.” The judge’s merely annoyed tone of a few minutes ago had given way to truly pissed off. Of all the judges in the building, Brandon had picked the worst one to hear a case this weak, this poorly prepared. The only things Judge Foster hated more than unprepared lawyers were cases that were too thin to be in court. He’d called the district attorney’s filing unit more than once to “order” them not to file cases that couldn’t make it past a preliminary hearing. If a case wasn’t even strong enough to show probable cause, which boiled down to the standard of “more likely than not,” then it shouldn’t be in court, wasting his time.

Now he turned to Brandon Averill, his bushy brows pulled down, his voice ominously low. “Your eyewitness has denied making the statement attributed to him by the officer. If you want to get that statement into evidence, you’ll have to call the officer. This gentleman”-the judge gestured to Charlie Fern, who’d probably never been called that before in his life-“does not seem inclined to go along with the program.”

I could see the skin around Brandon Averill’s collar turn red. “Can I have a moment to call the investigating officer, Your Honor?”

“You may have exactly one minute, Counsel,” Judge Foster said, his voice beginning to rise. “In the meantime, I presume we’re finished with this witness? That is, unless defense counsel would like to try and change his mind?”

“No, thank you,” Walter Schoenfeld quickly replied. “No questions, Your Honor.”

The judge turned to Charlie Fern. “You’re excused, sir.”

Sir. I had a feeling this was yet another first for the redoubtable Mr. Fern.

I saw the bailiff, clerk, and court reporter brace themselves, having recognized the signs of an imminent eruption. Ordinarily I would’ve felt codependently nervous for the prosecutor, but Brandon Averill’s cavalier attitude had me actively rooting for an ass-kicking. I sat tall and suppressed a smile. How often in life do you get to see the right foot meet the right ass at kicking time?

Brandon walked quickly out of the courtroom, and when the door swung shut behind him, the entire place fell silent. Everyone looked away from the bench; eye contact might invite the judge to find a new focus for his palpably growing ire. Walter turned and whispered to his client, and the other waiting lawyers huddled and spoke softly among themselves. One minute ticked by, then two.

“Bailiff,” the judge intoned loudly, “please go and fetch our prosecutor.”

“Yes, Your Honor,” the bailiff said.

“And if he hesitates,” the judge added, “shoot to kill.”

The bailiff was smiling as he walked down the aisle, his rubber soles squeaking on the linoleum. Seconds later, he returned with Brandon in tow. The prosecutor was not smiling.

“Your Honor,” Brandon said, out of breath, “I need a recess to locate the officer.”

“No, Counsel, you may not have a recess,” the judge’s voice boomed.

The looks on the faces of Clerk Manny and the court reporter told me the festivities had begun. Manny grabbed the water glass he kept on the shelf above his desk, and the court reporter’s expression hardened as she prepared her fingers for flight.

“As you know very well, Counsel, the defense has a right to a continuous preliminary hearing. Do you see all these lawyers lined up here?” the judge shouted in his thunderous baritone.

Averill nodded. I noticed the tips of his ears redden, matching the skin above his shirt collar.

The judge continued, “I’ll be damned if I make an entire calendar cool its heels while you figure out where your witnesses are!”

Brandon touched the knot of his tie like a condemned man fingering his noose. “Perhaps the defense will waive the right to a continuous preliminary hearing so the court can take up the next case while I locate my witness?”

“Oh, indeed?” the judge replied acidly. “Let’s find out, shall we?” He turned to the defense. “Counsel, do you waive your right to a continuous preliminary hearing?”

“No, Your Honor,” said the attorney. “The defense does not waive.”

“Shocking,” the judge said. “Any other bright ideas, Mr. Prosecutor? Or, better yet, any other witnesses? Some incriminating evidence for a change?”

“I don’t have any other witnesses, Judge,” Brandon said, trying to regain his cool with a nonchalant shrug.

“People rest?”

“I suppose so.”

“I have a motion, Your Honor,” Schoenfeld said, beginning to rise.

“Don’t bother, Counsel,” the judge said, signaling him to sit down.

The judge banged his gavel and barked, “Dismissed.”