Shepherd was one of the investigators who worked for the county attorney’s office. Because Marc called him as a witness, he was not allowed to use leading questions to get his testimony. Except, Shepherd was obviously hostile. He put up resistance even while Marc tried to elicit his background information. By the time he finished with this line of questioning, Judge Tennant had allowed him to treat Shepherd as a hostile witness. This allowed Marc to switch to leading questions.
Before finishing the question he had started, Marc walked over to the large illustrated drawing of the shooting site. He pointed a finger at the three unidentified girls behind Ferguson.
“Detective Shepherd,” he said again, “isn’t it true you questioned these three people, earlier identified as three black teenage girls?”
“I don’t recall. I can’t remember everyone I talked to off the top of my head,” the uncooperative investigator said.
“Let’s refresh your memory. Would you believe me if I told you Sergeant Leo Cohn of the crime scene unit testified that he produced State’s Exhibit B, the drawing of the crime scene?”
“Yes, I guess so.”
“Would you believe he also testified he made Exhibit B from information obtained by the investigation team, including you?”
“Yes,” Shepherd said and squirmed in his seat.
“And he testified that it was you who identified these three figures on Exhibit B as three, black, teenage girls?”
“Yes, I remember now.”
“In fact, they came to your office, didn’t they?”
“Yes, now that you mention it, I recall that they did.”
“You spent twenty years with the Duluth police and now three years with the Hennepin County attorney’s office. Would you consider yourself an experienced investigator?”
“Yes, I would.”
“I’m guessing you’ve probably investigated hundreds of crimes, haven’t you?”
“Yes, sure.”
“Do you have your case notes with you?”
“Yes, I always bring them when I testify.”
“Good,” Marc said, still standing before Exhibit B. “Would you check your case notes and find your notes concerning these three girls.”
Shepherd knew exactly who Marc meant and found them very quickly. He was not sure what the lawyer was up to, but his cop sense knew it was not good.
“Okay, I found it,” Shepherd said.
“Good. Read to the court what you wrote down after talking to these three girls.”
Shepherd read off the date, time and place of the interview, which was his office.
He continued, “Interviewed three, black, teenage girls who claimed they were in the protest march fifteen to twenty feet behind and to the right of Ferguson. Waste of my time. They saw nothing.”
“And? Is that it?” Marc asked.
“They didn’t see anything. They had nothing to add to the investigation.”
“You didn’t even include their names in your case notes?”
Shepherd, now sweating a bit at his forehead, checked his notes again then said, “I’m sure I have them but…”
“You didn’t bother to write them down or give them to Sergeant Cohn, did you?”
“They had nothing to add,” Shepherd indignantly said.
At that moment, Marc looked at Arturo who put the homeless man’s photo on the TV monitors.
“Do you recognize this man, the one showing on the courtroom monitors?”
“No, I’ve never seen him.”
“We have had police officers testify that he was one of the marchers in the protest. He was seen every day close to Reverend Ferguson,” Marc said preparing his question. When he said this, despite his best efforts at maintaining a poker face, Shepherd’s eyes widened, and his face tightened.
“Those three girls you interviewed, they told you about him, didn’t they?”
“If it’s not in my notes, they must not have told me,” Shepherd indignantly said.
“Detective, I have those three girls waiting in the hallway, would you like to change your answer?”
“Okay, I don’t recall being told about him, no.”
“Obviously, you spent no time looking for him or trying to determine who he was. Is that fair to say?”
“Um, yes,” Shepherd agreed.
“No one else in the investigation did either, did they?”
“Not that I am aware of, no.”
Marc walked slowly back to his chair and sat down. He looked at Shepherd and said, “One more question, Detective. Isn’t it true that once you knew that Ferguson was shot dead by a police officer and you were handed racism as a motive, the investigation was over as far as you were concerned?”
“There was nothing left to investigate.”
“I have nothing further, your Honor.”
“Mr. Gondeck?” Tennant asked.
“One moment, your Honor,” Gondeck said.
The two prosecutors and Jermaine Fontana conferred for a moment. Unintelligible whispers, shaking heads and an angry look from Fontana resulted. Finally, Gondeck shut it down. Having determined there was not much they could do to fix it, Gondeck passed. Unless Kadella could come up with something connecting the missing homeless man to the shooting, Gondeck could easily dismiss his involvement during closing argument.
The remainder of the morning session was taken up by the three teenage girls. Arturo took all three because he was the one who prepared them.
Their testimony could have come from triplets. All three of the girls, having never been in a courtroom before, were visibly nervous in the beginning. That did not last long. Once they got going, Arturo had a hard time controlling them.
The first one up was more or less the ringleader, Tonya Howard. By the time Arturo got her talking about the protests, she was on a roll. In fact, she probably came up with the best line of the trial. When asked why she and her friends had attended, she readily admitted they were mostly interested in meeting boys.
“Ms. Howard,” Arturo began after the homeless man’s photo appeared on the monitors, “do you recognize the man on the courtroom monitors?”
“Oh, yes. Absolutely. That’s the strange white man who was there every day. He just seemed to be, I don’t know, hanging around. But it’s funny ‘cause he looked like a homeless man, but he wasn’t panhandling. We never once saw him asking anyone for money.”
“Were you looking at him or Reverend Ferguson when the shots were fired?”
“Ah, no, no we wasn’t.”
“Do you remember what you were looking at?”
“Well, we were, you know, checking out some boys we saw on the Mall. On Nicollet.”
Once the laughter died down Arturo asked, “What did you do after you heard the shots?”
“At first, we couldn’t tell where they came from. Then I saw Reverend Ferguson on the ground and him running away. Which seemed odd.”
“By ‘him’ do you mean the homeless man on the TV monitor?”
“Yeah, yeah, him. He was running away from Ferguson. It was strange because he looked old and like he couldn’t walk fast. But when he ran away, he was running fast. Like he was a lot younger and in better shape than he looked.”
“Objection, the witness is not a physical fitness expert,” Gondeck said.
“Overruled. She can make a layman’s observation,” Tennant ruled.
“Did you see the defendant?”
“Yes, I did. He was standing over Ferguson with his gun pointing up.”
“Did you see the shooting itself?”
“No. We heard the shots, then saw a lot of people running around. It was scary.”
“Other than the gun the police officer was holding; did you personally see any other guns?”
“No, nuh uh. Except those from other police officers.”
“After the shooting, what did you do?”
“We ran, like everybody else.”
“When did you call the police to talk to them?”
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“It was a couple of days later. I slipped up and told my mom we were there. She didn’t know we went to the protest.”
“Was she upset with you?”
“Oh, yeah. She told my dad and he made me call the police.”
“Did you talk to an investigator?”
“Yeah. My dad drove us down and we all had to tell this older, bald man everything we knew.”
“Did you tell him about the homeless man?”
“Sure. We told him he should find him because he was closest to Ferguson and he must have seen what happened.”
“Did you tell him you saw the homeless man running away?”
“Your Honor,” Gondeck stood and said, interrupting Arturo. “We’ve heard a lot about this so-called homeless man without any relevance. Next, we’ll be hearing about shadows on the grassy knoll.”
Marc stood to respond and said, “He doesn’t want the jury to hear any more about the sloppy job his crack team of investigators did.”
“That’s enough, Mr. Kadella. Come up here,” she said gesturing with her hands.
“You have two more out there, her friends?” Tennant asked.
“Yes, your Honor,” Arturo replied.
“Are either of them going to give us any surprises?” she asked.
“Like the magical, mysterious, disappearing gun,” Gondeck said.
“Knock it off, counselor,” Tennant told him.
“No, their testimony is essentially the same,” Arturo replied.
“The jury needs to hear that one of their investigators was told by three separate witnesses that a material witness was out there and that they did nothing to find him,” Marc interjected.
“Steve, Jennifer?” Tennant asked.
“I think we’ve heard enough,” Gondeck said.
“I tend to agree, but this is a homicide case. Get to the salient points, Mr. Mendoza,” Tennant said.
“Yes, your Honor.”
When they started again, Tonya admitted she could not remember the question, so the court reporter read it back to her.
“Oh, yes, we told him about the homeless man running away. Did he say we didn’t? If he said that he’s lying,” Tonya indignantly embellished her answer for which the judge lightly chastised her.
Gondeck passed on cross-examination, as he did with the other two girls. Their testimony was essentially the same, made mostly to cast doubt on the investigation. By the time Mendoza finished with the third one, it was time for the lunch break.
“Hey,” Maddy said to Marc while reading a message on her phone.
“What?”
“I got a text from Tony. Here, read it.”
Marc took her phone and read: “Don’t leave. We are on the way with vital info. Wait for us.”
“Who is ‘us’ and what vital info do they have?” Marc rhetorically asked.
“And who wrote the text? That’s from Tony’s phone, but the message is too clear for him to have written,” Maddy replied.
“What’s up?” Arturo asked.
Marc showed him the text then gave Maddy her phone.
“Ask them for an ETA? Tell them we’ll meet across the street at Peterson’s. I’m starving.”
Gretchen showed Carvelli the reply message from Maddy and agreed to meet them at Peterson’s. His phone rang and Gretchen answered it.
“Yeah, he’s right here,” she said. “Sorenson.”
“What’s up, Dan? I’m in a bit of a hurry.”
“Our mystery caller told Damone about a plea deal offered by the prosecution. Third-degree? Do you know about that?”
“No, I don’t.”
“Who would? That wouldn’t be generally known unless he accepted it and Damone’s pal said he didn’t”
“I don’t know. I’ll ask Marc about it. Did the call come from the same phone?”
“Yeah, it did.”
Sixty
Marc and Maddy were seated in a large, horseshoe-shaped booth. It was barely five minutes before they saw Carvelli come in. Marc waved to them and as they walked toward them, Maddy quietly asked, “Why are Gretchen and Philo with him?”
Before Marc could reply they were at the booth.
Without sitting down, Carvelli asked, “Have you ordered?”
“No,” Marc replied.
“Slide over,” Carvelli said, then sat down next to Marc. Gretchen and Philo sat opposite them.
“Check this out,” Carvelli said, then looked around the restaurant while holding his phone in front of Marc’s face.
“Why am I looking at the background picture on your phone?”
“What?” a confused Carvelli asked.
He looked at his phone and the picture of the gun was gone.
“Damn,” Carvelli said. “Here, find the photo for me,” he said handing his phone to Gretchen.
By now Gretchen had already retrieved her phone from her purse, found the photo and said, “Use mine. It’s better quality anyway.”
Carvelli reached for it and Gretchen pulled it back.
“Not you, you’ll probably break it. Here,” she said and handed the phone to Maddy. “I swear we need to send you to tech school before you break something,” Gretchen told Carvelli.
“Too late,” Maddy quietly said. She was holding Gretchen’s phone so she and Marc could both see it.
“What am I looking at?” Marc asked. “Is that what I think it is?”
“What do you think it is?” Carvelli asked.
“It looks like Ferguson pointing a gun at someone,” Marc said, trying to control his excitement.
“It looks like that,” Maddy said. “But that’s not Ferguson’s arm. Look closer,”
“You’re right, then who…”
“Zoom in on Ferguson’s right shoulder,” Gretchen told Maddy. She slid around the seat and was right next to Maddy. “Here,” Gretchen said, pointing at the spot.
Maddy zoomed into that spot until they could clearly see the top of Dudek’s baseball cap.
“That’s our homeless guy,” Marc said. “My god, he did it. He sneaked up behind Ferguson, reached around him and pointed a gun at Rob.”
“Just like you guessed,” Maddy said.
“I did, didn’t I?” Marc bragged. “I’m a genius.”
“You got a lucky guess,” Maddy said. “The date and time stamp are right. This is the shooting.”
She looked up across the table at Philo with a grim face and said, “And where the hell has this been? And don’t tell me you just found it.”
Philo, his face beet red, did not say a word. By now, Marc had his phone out and dialed a number from his log.
“Hey, Lois, it’s Marc. Is she in?”
“She’s eating a salad. Why?”
“I need to speak to her right now. It’s critical,” Marc said.
“Hang on.”
A few seconds later, Marc heard a very familiar voice.
“Marc, what do you need?”
“I apologize for interrupting your lunch, Margaret. We have to meet in chambers. Now.”
“Why, what have you come up with?”
“The end of this trial. I’ll call Steve Gondeck and we’ll be there in ten minutes if that’s okay.”
“Yeah, this salad sucks anyway. I need a steak and baked potato. I’ll call upstairs and get Steve and Jennifer myself. Where are you?”
“Peterson’s,” Marc said.
“Aw, man! A Peterson’s burger. I’d kill for one.”
“I’ll bring you one.”
“No, don’t. Get back here.”
Marc ended the call and turned his head to his right. He found Maddy with her right elbow on the table and her chin in her right hand. She was staring at him within inches of his nose with a very serious look on her face.
After a few seconds, Marc said, “What?”
She continued to silently stare, then finally said, “So, you still have her phone number on speed dial, I see.”
“What? Wait, what? It’s not…okay. I’l
l remove it.”
Still looking at him exactly the same way, Maddy said, “You are so easy to rattle and it’s so much fun.”
By now the entire table was laughing.
“You got me, okay? Let’s go.”
Gondeck and Jennifer Moore came through the guarded courtroom door together. Marc and the gang were already waiting for him. Marc had spoken to one of the deputies who promised to have Rob brought back.
“What’s so important you had to ruin my lunch?” Gondeck asked.
“You could stand to skip lunch once in a while anyway,” Marc said.
“That’s not nice,” Maddy said.
“She kind of likes portly,” Carvelli added.
Gondeck straightened up, looked at Maddy and said, “I am portly.”
When the laughter died down, Lois came out to get them.
“Do you want to wait for your client?” she asked.
“No, let’s go,” Marc said. He looked at Maddy. “Keep him here,” he said referring to Philo. “Break a leg if you have to.”
“Oooo,” Maddy said, “you know how to charm a girl.”
“Where’s Arturo and your client?” Margaret asked as the three lawyers took seats.
“Arturo’s at his office. I called him. He’s on the way and one of your deputies is rounding up Rob.”
“Okay, what?” Margaret asked.
Marc took Gretchen’s phone from his coat pocket and brought up the photo on the screen. He stood up, stepped behind the desk to lean over the judge and held it for her.
“You’ll want to come look at this,” Marc said to the prosecutors.
Margaret put on her cheaters while Gondeck and Moore joined her.
“Is that what it looks like?” the judge asked.
“Oh, no, you don’t,” Gondeck practically sputtered with anger. “You’re not bringing in some phony, photo-shopped picture of Ferguson with a gun.”
“Thank you for the ruling, Judge Gondeck,” Tennant wryly said. “Or, maybe I’ll decide what comes in.”
“This is…” Gondeck started to say.
“This is a photo taken by one Philo Anson of the Star Tribune at the time and place of the shooting of Reverend Ferguson,” Marc said. “Note the date and time stamp,” Marc said pointing.
“Let me zoom in…” Marc began to say and reached for the phone.
Exquisite Justice Page 38