Prime Witness

Chapter Twenty-six

I have spent the better part of a week on the phone, eating so much crow that I now spit feathers when I talk. These calls were placed to Herb Jacoby, the Crown Counsel in Canada. I have pleaded with him for cooperation, his help in producing one of the two security guards who arrested Iganovich.

Jacoby is not exactly the soul of benevolence these days, still nursing his anger over the abduction of the Russian. I have been applying apologies like a shaman’s balm to his sovereign pride, assuring him repeatedly that my office, our government, had nothing to do with this escapade, that it was a private self-help venture of Kim Park.

In the scheme of things, Iganovich’s statements regarding the abandoned van at the time of his arrest in Canada could be important to my case. I want this evidence available for trial. Chambers has thrown a net over it in one of his myriad motions to suppress.

This morning Judge Fisher looks down at the defense table and Adrian Chambers.

“A lot of paper,” he says. He’s talking about the small mountain of defense motions.

“I hope they’re all necessary,” he tells Chambers.

“Every one of them, your honor.” This from Adrian.

“Emm.” Fisher is not convinced.

“Are we ready to proceed?” he says.

Nodding heads from both tables.

“Fine,” says Fisher. “Let’s get to it.”

Chambers’s motions contain more redundancies than the failsafe systems on the space shuttle, a lawyer’s grab bag of backup arguments: There was no probable cause for the arrest; his client was not Mirandized or given the Canadian equivalent before he opened his mouth; the statements were coerced in violation of due process.

While a warrant for murder was issued for the Russian’s arrest, he was originally detained in Canada on charges of shoplifting. For this reason, the fact that the warrant did not match the charges of arrest, it is deemed to be a warrantless arrest. This means I have the burden of going forward, presenting my case first.

I outline the issues for the court. We will now argue on turf that I have created. I call my first witness.

Reginald Beckworth is the picture of a proper British constable, even though he is only private security. Precisely trimmed mustache and dark sideburns, a tweed wool suit and vest, he is better dressed than most lawyers and half of the judges in this courthouse. Eight years in corporate security, he is part of mid management with the Hudson Bay Company, heading security for one of their larger stores.

The witness identifies Iganovich as the man he and his partner stopped on suspicions the day of the arrest.

“He made a good number of furtive gestures with his hands to the inside linings of his clothing,” says Beckworth.

“So you thought he might be concealing merchandise?”

“Objection, leading.” Chambers is on his feet.

“Let me rephrase,” I say. “What did you conclude by these moves on the part of the defendant?”

“That he might be concealing merchandise,” says Beckworth.

“Thank you. Now tell me, during the time of these observations, who employed you? Who was paying your salary?”

“The Hudson Bay Company.”

“Have you ever been in the employ of any official police agency?”

“Twelve years with the Vancouver Police Department, but I retired,” he says, “eight years ago.”

I want to get this out early, his prior police employment, so that it is not later exploited by Chambers. I open the issue like a book to the court so that it does not appear that we have anything to hide.

“So at the time of this detention, when you stopped Mr. Iganovich, you were solely in the employ of the Hudson Bay Company?”

“Correct.”

“I take it that this was true of your partner as well, that he was employed exclusively by the Hudson Bay Company?”

“That’s correct. The company has its own in-house security, with its own training program.”

My object in this line of questioning is straightforward. To overcome Chambers’s contention that these guards were acting as agents of the state, I must place them clearly in the private sphere, beyond the pale of any state action.

“At the time you stopped Mr. Iganovich, did you know that there was a warrant for his arrest issued in this country?”

“No, I did not.”

“Did you have any reason to believe that he had committed any crime other than the suspected shop theft for which you sought to detain him?”

“No.”

“So in your mind, when you stopped Mr. Iganovich, this was a routine case of suspected shop theft and nothing more?”

“That’s right.”

“So prior to turning the defendant over to the police following his assault on your partner and yourself, there was no police involvement whatever in his original detention and apprehension?”

“None.”

I have slammed this door shut, as tight as I can on this issue.

“Would you tell the court what happened when you first approached Mr. Iganovich on the day in question?”

He gives a considered sigh. “I’d thought he’d like to have killed us both,” says Beckworth.

“We had watched him for some time, both on a surveillance camera in the store as well as from close observation from two angles down on the main floor. It was his manner of dress that initially brought him to our attention,” he says.

“Shoddy?” I ask.

“Yes. It was that,” he says.

Looking at the dapper Beckworth I can believe that this might have caught his attention.

“But more than that,” he says. “He was wearing a long overcoat, blousey, loose clothing underneath. The kind of thing we watch for.”

“So there’s a profile,” I say, “for shoplifters?”

“Oh yes.” He says this with the conviction of a convert. “Long coats for men. Large full skirts and oversized panty hose for women. Baggy warm-up suits have become the unisex favorite in the last few years. People will hide the stuff in places you wouldn’t believe,” he says.

“I can imagine.” Visions of cavity searches for walkman stereos flash before my eyes. The proctologist’s worst nightmare.

“It’s a much larger problem than most people imagine,” he says, talking about shoplifters.

“Your suspect was milling about a table of expensive silk scarves,” says Beckworth. “We believed that he had palmed one of these.”

I stop him right there.

“What made you conclude that he had palmed the scarf?”

“One minute we saw it on the table in his hand, and the next minute it seemed to disappear, into the inner folds of the suspect’s clothing.”

“You saw this?”

“I did.”

“Thank you. Go on.”

“We approached the suspect. My partner barely had time to identify himself as store security, and we were into it with him, the three of us were on the floor, wrestling.”

“What did Mr. Iganovich do?” I say.

“For starters, he kicked my partner. Tried for the crotch, but missed. Took out his knee,” he says. “The man is still off on disability,” he tells us. “Before I could get there,” Beckworth explains that he was an aisle away, “the suspect hit my partner with an electronic device you call a stun gun, twice on the arm. Completely incapacitated him.

“With the help of two patrons we finally subdued him. He scratched my face, tore another fellow’s jacket,” he says. “Finally I managed to get a hold on him from behind, got the stun gun up behind his back where I could remove it from his hand.”

I show Beckworth a copy of his investigative report, the part that chronicles Iganovich’s statements about the abandoned van. He identifies this entry as being written by himself.

“Was it during this time, while you were wrestling him to the ground that Mr. Iganovich made the statements referred to in your report?”

“Moments after,” he says, “when we had him down on the floor. He seemed panicked, preoccupied by other things. .”

“Objection. Move to strike.” Chambers is on his feet. “That’s pure speculation on the part of the witness,” he says, “that the defendant was panicked or preoccupied.”

“Common experience?” I tell the court. It is one of the exceptions to opinion testimony offered by a non-expert.

Fisher looks at me like nice try.

These are subjective feelings, not physical manifestations of demeanor and I know it.

“Next you’ll have the witness climbing into the defendant’s head to tell us what he was thinking,” says Fisher.

I would if I could. Thoughts kept to myself.

“The objection is sustained at least until Mr. Beckworth shows me his Ouija board.”

“What about the motion to strike?” says Chambers.

The judge looks at him, like don’t be greedy.

“Fine,” he says, looks at the court reporter. “Strike it.”

A point for the other side. I move on.

“So when the defendant was on the floor being restrained, this was when he made the statements about his van?”

“That’s correct.”

“In your capacity as a private security officer under the Canadian system, do you normally caution a suspect that anything he says may be taken down and used against him?”

“Not usually. We leave that for the police if it becomes necessary to involve them.”

“In this case did you make such an admonition to the defendant?”

“No.”

“Why not?”

“Well, as I said it wasn’t standard procedure. And in this case, even if we’d wanted to admonish him, there was no opportunity,” he says. “The statements were made without any warning, during a physical altercation. We weren’t questioning the man. We were trying to restrain him.”

“Would you call the defendant’s statements as set forth in your report purely voluntary?”

“Objection.” Chambers is out of his seat again. “The defendant had at least three men on his back, one of whom was twisting his arm off. The prosecution has a funny sense of what is voluntary.”

Fisher looks at him, a little puzzlement. “Mr. Chambers, are there grounds for your objection in there someplace? Maybe I missed them,” he says.

“Leading question,” he says.

“Thank you. Overruled.”

One for two, Chambers sits down.

Beckworth sits there looking at me, not sure whether there is a question before him.

More than one case has been lost on appeal because a lawyer on pretrial motions lost track of his questions, became mired in objections, and forgot to return for a vital answer.

I ask the court reporter to read back my last question.

She fingers through the fan-folded little sheets from the stenograph machine, finds her place and reads:

“Mr. Madriani,” she says. “Would you call the defendant’s statements as set forth in your report purely voluntary?”

I look at the witness.

“Absolutely,” says Beckworth. One more piece cobbled into place.

“Then from your testimony is it safe to characterize the statements, the admissions made by the defendant about his van at the time of his detention, as unsolicited and spontaneous?”

“Yes,” he says. “That’s a good description.”

I walk toward our counsel table. Goya is sitting there, checking off points on a yellow legal pad. We will confer before I release the witness to make sure that I haven’t missed anything.

“Now, immediately after your altercation with the defendant, did you have any reason to believe that he was wanted for any crime other than the suspected shop theft?”

“No.”

“Even with such a violent reaction, you still had no reason to suspect that Mr. Iganovich might have committed a more serious crime?”

“Not at all,” he says. “Shop thefts all react differently,” he tells us. “Some are retiring. They will simply stand there and empty their pockets. Carry on the most cordial conversation as they confess their crime. Women often cry, and some men. Then again, a few will pull a gun or a knife, and try to kill you. It’s very much like a traffic stop,” he tells us, “you’re dealing with the unknown.”

“Have you ever been assaulted before while detaining a suspected shoplifter?”

“Several times,” he says, “though this was clearly the most violent. If he’d been armed with deadly force, we would clearly have been in big trouble,” he adds. This last is gratuitous.

“Objection,” says Chambers. He’s on his feet. “The witness is speculating again.”

“Sustained,” says Fisher.

“Mr. Beckworth, please just answer the questions.”

“Yes, your lordship.”

Fisher looks at him. He’s been called a lot of things in his time, but never this.

After coming all this way Beckworth seems determined to stick a pike in the defendant. Half of the cops in this city, given the injuries meted out by Iganovich in this brawl, would sit in the witness box seething, overflowing with venom. This witness at least puts a polished face on it.

“You said earlier that your employer has its own training program for security personnel?”

“That’s correct.”

“Did you take this training?”

“I did.”

“Did they teach you there how to deal with violent situations?”

“Usually to avoid them, wherever possible. It isn’t worth the risk of injury to ourselves or a customer.”

“But in the course of your career as a police officer, and later in private security, were you taught the techniques, the holds and maneuvers that might be used in restraining a violent suspect?”

“Oh yes.”

I move with the witness through a line of questions intended to remove the specter of some brawl on the floor, to lift this thing to a more professional level. Then I pop the clincher, the reason for this line.

“And did they teach you to use only that degree of force absolutely necessary to restrain the individual, and no more?”

This goes beyond leading. I am prepping him now and Chambers knows it. He sits up straight in his chair ready to object. But it’s too late. The damage is done. He sits back, looking at me, a glare from the corner of his eye.

“Yes,” says Beckworth.

“Mr. Beckworth, how would you characterize the amount of force used to restrain Mr. Iganovich on the day in question?”

“Just the minimum,” he says. “Only what was absolutely necessary to disarm him, to take him into custody,” he says.

Wonder of wonders.

Having drawn the desired legal conclusion, I take the witness on a tour of the less refined and lower martial arts. In three minutes Beckworth has verbally choreographed all of his moves that day, the holds used on Iganovich, in minute detail. It may bear little resemblance to fact, a symphony of recollections that sounds more like “Swan Lake” than the “Thrilla in Manilla.” But it serves to lock a clean version of the events in the witness’s psyche, a version the state can live with, one not likely to be tumbled and shaken too much on cross.

It is why, in a motion to suppress evidence, it is not always bad to shoulder the burden of going forward.

I confer with Lenore back at the table. Everything is crossed off her long list. I hand the witness over to Chambers.

He gets up from the table, maintains a polite distance, but stares directly at the witness before asking any questions. Then he speaks.

“Mr. Beckworth. Did you have a chance to go over your testimony with Mr. Madriani before appearing in court here today?”

“I did.”

“When was that?”

“Once yesterday. And earlier today before arriving in court.”

“Did you rehearse your answers with him?”

“I wouldn’t call it a rehearsal,” says Beckworth.

“Well, did he tell you which questions were significant and which were not?”

“If you’re asking me whether he coached me, told me what to say, the answer is no, he did not.”

Chambers smiles. Beckworth is a seasoned witness. Some who are not might have slipped and fallen badly here.

“Let’s go back to the very beginning,” says Chambers. “The first time you ever laid eyes on my client, Mr. Iganovich. What was he doing?”

“He was walking in the aisles of our store, looking at various clothing items.”

“And you saw him picking these up and stuffing them into his pockets?”

“No.”

“Oh-well then, you must have seen him grabbing handfuls of clothing and sticking them inside his coat, or down his trousers?”

“No.”

“Your honor, do we really need the sarcasm? Mr. Chambers is aware that actual observation of theft is not necessary for probable cause to detain in a case of shoplifting. A good faith belief is all that is required.”

Actually I have no idea whether Chambers knows the law of shop theft or probable cause. But I can now be certain that my witness does.

Chambers shoots me a look, like class is now out. Coaching the witness on my own time, on direct examination, is bad enough. He will not tolerate it here on cross. He complains to Fisher, more whining on court than John McEnroe.

Fisher’s heard enough of this lawyers’ cat fight. “Get on with it,” he says. “And Mr. Madriani, keep your comments to formal objections.”

“Thank you, your honor.” Chambers smiles at him. Then gives me a toothy grin like some four-year-old who’s just peed in my sandbox.

“Mr. Beckworth, exactly what was Mr. Iganovich doing when you first saw him?”

“As I said, he was walking between the aisles picking up some of the merchandise, looking at it, moving on.”

“That’s all?”

“And making furtive gestures,” he says.

Chambers spins on him in front of the witness box.

“Ah, and making furtive gestures. And what were these furtive gestures? Can you describe them?” he says.

“Moves to the inside of his coat with his hands, buttoning and unbuttoning his coat. That sort of thing,” says Beckworth. “Idle movement with the hands. We are trained to watch for this.”

“Ah. I see. Furtive gestures,” says Chambers. He’s nodding his head, slow, solemn motions.

“So if I were in your store right now, and I buttoned my coat, that would be a furtive gesture?” he says.

“Could be.”

“And you would feel justified in approaching me, detaining me and searching me to see if I’d taken any merchandise?”

Beckworth rolls his eyes.

“No,” he says, “I would not. It’s a combination of things.”

“Ah, a combination,” says Chambers, finger to the nose, like now we’re finally getting somewhere.

“This combination, this is sort of like a formula?” says Chambers. “Things you look for in detecting shop theft?”

“If you like.”

Oh, he likes, putting words in the mouth of the witness.

“Excellent,” says Chambers, his voice filled with mock enthusiasm, like he’s just found the Rosetta Stone.

“Then one part of this formula is the so-called furtive gesture?” says Chambers.

“It can be, yes.”

“Well, either it is or it isn’t?”

“It depends on the circumstances,” says Beckworth.

A look from Chambers, like a hurt child.

“I thought we had a formula,” he says. “Now you tell me it depends on the circumstances. How do we know whether the formula fits a suspect or not if it’s always changing?” he says.

“I didn’t say it’s always changing.”

“Oh. Good,” says Chambers. “For a minute there you had me worried.” This is Chambers’s special talent, the thinly veiled derision of a witness, a kind of microwaved mockery that can fry sound judgment in the most sensible of witnesses, bring on a wave of anger and in time the witless responses that breed trouble for your case.

“Let’s get the rest of this formula,” he says. “You said earlier that the defendant was wearing a baggy coat. Is that part of the formula?”

Beckworth is beginning to regret that he’s allowed Chambers to coin this term.

“It can be,” he says. “Depends on the circumstances.”

“Oh, come on. Can’t we have a formula that works?” says Chambers.

Beckworth does not answer this, but gives Chambers the look it deserves.

The lawyer moves on.

“Well, let me ask you. Did it look like Mr. Iganovich was examining merchandise when you saw him?”

“He was. Yes.”

“So would you say that examining merchandise is also part of the formula?”

“If you say so.”

“Hey. It’s not my formula. It’s yours,” says Chambers. Big smile like he’s just sold the Canadian a hunk-a-shit used car.

“What else?” he says.

“What do you mean?” says Beckworth.

“Well, you stopped and arrested the man. What else caused you to be suspicious? What was the rest of the formula?”

“Well,” Beckworth thinks for a moment. “The way he examined the merchandise.”

“What was it about the way he examined merchandise, exactly, that caused you to question him?”

“He would look at the merchandise, then he would look around, like he was looking to see if anyone was watching him.”

“Ah.” Chambers is nodding now like he’s found the missing link. “Looking sort of shifty-eyed?” he says.

“You could call it that.” Though from Beckworth’s tone this would clearly not be his choice of words.

“Another part to the formula,” says Chambers. “Shifty eyes.” He says this slowly as he goes through the exercise of writing it on a piece of paper, something to be saved for posterity.

“Lemme see,” he says. “So we have furtive gestures, a baggy coat, examining merchandise, and shifty eyes.” Chambers nods, makes a face like he’s convinced. A little more derision.

“Anything else?” he says.

“No, that was it.”

“Oh good. So we have the formula.” Chambers holds his notes up for Fisher to see, then he smiles.

“Now ultimately you stopped Mr. Iganovich.”

“Yes. After he attacked us,” says Beckworth.

“We’ll get to that later,” says Chambers. “Exactly who attacked whom,” he says. “For now just answer my questions.” The smile is gone from his face.

“Ultimately you searched Mr. Iganovich, isn’t that true?”

“Yes.”

“Well, how much did you find?” says Chambers.

“What do you mean?”

“How many items of store merchandise did you find on Mr. Iganovich after you wrestled him to the ground-you and what, three other people, and searched him?”

“We didn’t find anything.”

“Excuse me?”

“We didn’t find any merchandise on the suspect.”

A big mock sigh from Chambers, shoulders shrugging, hands out, palms up.

“What do you mean you didn’t find anything. He did the furtive gestures thing didn’t he?”

“Yes.”

“And a baggy coat. He was wearing the baggy coat?”

“Yes.”

“And shifty eyes. You said he had shifty eyes?”

Nothing from Beckworth.

“Well did he or didn’t he?”

“Yes.”

“That’s your formula, isn’t it?” Conveniently Chambers ignores the other item, that the Russian was fingering the scarf when Beckworth saw it disappear.

“Not my formula,” says Beckworth.

“I thought we had something here,” says Chambers.

“This formula,” he says. “Are you telling me that after all this, after sweatin’ blood, getting writer’s cramp-look at my notes,” he says. He turns the paper toward the witness, a lot of unintelligible scribbling. “Now you’re telling me that this thing doesn’t work after all-that your formula’s worthless?”

“I never said it was a formula,” says Beckworth.

“Sure you did. Would you like me to have the court reporter read it back to you?”

“No.”

Chambers moves away from the witness, stands with one hand on his hip.

“And after all that, you didn’t find anything on my client.”

“We found a silk scarf on the floor,” says Beckworth, “near where we scuffled.”

“Ah. And the police charged Mr. Iganovich with stealing this scarf?”

“No. They didn’t.”

Mock shock from Chambers. “No? Why not?”

“Insufficient evidence,” says Beckworth.

“In other words the scarf could have fallen off the table of merchandise while you and the others were beating on Mr. Iganovich?”

“Objection.”

“Sustained. Mr. Chambers.”

“Sorry, your honor. Slip of the tongue.”

A deep sigh from the witness. It will be a long day. Before it is over, Reginald Beckworth will be wondering where Adrian Chambers left his rubber hose and floodlight.