by Jason Mason
“It would have been at approximately 1:15 in the afternoon,” the officer responded after checking his notes.
“I see. And can you describe the day for me? Like weather wise.”
“Well, it was sunny. Visibility was good…”
“And the temperature was twenty-eight degrees Celsius, right?” Baker interrupted.
“If you say so, I can’t remember.”
“But you’ll agree it was hot though?”
“Yeah…” the officer replied, becoming confused.
“If I recall correctly, there was a heat wave hitting the city that week. Do you remember that, officer?”
“Objection,” Ryan Cutler stood up to interrupt his witness. “Counsel is providing evidence through his questions, any evidence has to come out of the witness.”
“Your honour,” Baker smiled at the judge. “I was merely putting a statement to the witness and asking if he recalled it. We were all here last summer, that heat was brutal. I didn’t think it is was such a controversial topic.
The judge considered the objection for a few seconds.
“I’ll overrule the objection. Don’t try to get cute with me though Mr. Desjardins, if you try to introduce evidence in your line of questioning I will stop you,” he said slightly dressing down Baker. It was still a win.
“The witness shall answer the question.”
“I’m not sure, but I recall a heat wave last summer. It may have been that week.”
“Ok thank you. So on hot days do you often drive with your window open?” Baker continued.
“Sometimes I do, sometimes I don’t.”
“On this day, do you remember if your window was open?”
“I can’t recall…” the officer said tentatively.
Baker retrieved a photo he printed the night before and handed it to the witness to look at.
“This is a picture I found while doing my own research into this alleged drug trafficking. Do you recognize the scene in the photograph?”
“Yeah,” the officer said while examining the picture. “It appears to be a photo of me arresting Mr. Freeman. But it doesn’t show me asking….”
“Is that your police vehicle in the picture?” Baker cut off the officer.
“Well… yes it is.”
“So, is your window down?”
“Yes, it appears to be,” the officer responded.
“And did you leave it open after you arrested my client?”
“I would have probably closed it,” he responded tersely.
“But you don’t know, right? You didn’t even remember if you had the window open or closed when I asked you under oath earlier.”
The officer remained stoic and quiet.
“So you’ll agree that you don’t know if it was open or shut, right?”
“I would agree.”
“And you told the court earlier that you drove the defendant back to the police station, correct?”
“You heard what I said,” Officer Garrett replied sharply.
“Answer the question,” interjected the judge. It was clear both the prosecutor and the judge were starting to lose faith in this witness at this point.
“Yes,” he responded.
“Good. Thank you. But you didn’t go directly to the police station did you, officer?”
“No.”
“What happened in between the arrest and you taking Mr. Freeman to the police station?”
“I stopped at a convenience store on 82nd avenue.”
“What did you do there?”
“I picked up a pack of smokes. I was in and out in less than two minutes,” the officer said getting nervous about this line of questioning. He knew he was violating policy (if not the law) by making a personal stop while he had a suspect detained in the back of his cruiser. He was under a lot of stress that week with his wife laid up in bed with a broken leg and hadn’t had a cigarette since the morning. If he didn’t stop then it could be hours before Marcus Freeman was sorted out and he could get a smoke.
“You stopped in for some smokes. Ok, and did the suspect come in with you?”
“Yes he did.”
“And why did he come in with you?” Baker asked.
“He told me he needed to use the washroom. But when we got inside he said he didn’t have to go anymore.”
“Ok. Ok, and when you arrested the suspect, what did you do with the drugs?” Baker continued relentlessly.
“I placed them in a sealed zip lock bag and placed them into an evidence pouch in the centre consul of my police vehicle.”
“Ok. And both you and the suspect were inside the convenience store at this time. So does this evidence pouch lock?”
“Not on its own.”
“So how do you secure it then?” Baker asked.
“When the vehicle is locked then the evidence is safe unless the vehicle is broken into,” he responded. “And the vehicle wasn’t broken into.”
“But the vehicle is not locked if the driver’s window is opened, is it?” Baker didn’t wait for a response before turning to the judge. “Your honour, I would like a voir dire to determine the admissibility of the seized drugs.”
The judge thought about this for a minute and then nodded in agreement.
“That seems appropriate in my opinion. Alright counsel, you may make your arguments on why you believe the evidence should not be admitted and then the prosecution will make their arguments. You will have a final right of reply if you wish to use it.”
“Thank you your honour,” Baker was beginning to feel much more confident now that the evidence he wanted was out in the open. Even if he lost, he should win on appeal.
“We all know how important the chain of custody is,” Baker began. “And the reason for that is so we know that the substance the police analysed is the stuff the suspect was caught with. In these circumstances all we know is that something was taken from my client and placed in an evidence bag. Crucially we don’t know if the substance in the evidence bag after the stop at the convenience store was the same substance taken from my client when he was arrested.”
“Your honour, with the window open anybody could have went into the police car in those two minutes,” he continued. “Criminals know how those evidence pouches work so if somebody walked by we don’t know what was taken from the car or what was put back into it.”
“Counsel, are you implying that somebody took three ounces of a non-illegal substance from the evidence pouch and replaced it with three ounces of crystal meth?” the judge asked incredulously.
“I’m not implying anything, your honour,” Baker replied calmly. “Only that it has not been established that the substance that was seized from my client was the same substance that was analysed. And without that being proven, there cannot be a conviction.”
“Counsel?” The judge turned to the prosecutor.
“Well… Your honour,” stuttered the prosecutor. “As you said, it is so unlikely that anyone would have broken into a police car and planted drugs…”
“They would not have had to break in to the cruiser if the window was open, counsel,” the judge reminded Cutler.
“Right, yes right. Well maybe not broken in, but nobody would have done that, or that is to say nobody would have opened the door to place drugs in the car, it makes no sense your honour.”
“Perhaps it was a rival drug dealer,” the judge hypothesised. “I can’t say. But the defence made a compelling argument that the chain of custody of the substance that is at the heart of this trial cannot be determined. Unless you have another witness who can speak to this issue, I am prepared to make a ruling right now.”
The prosecutor desperately shuffled through his notes before responding.
“No, sir. I don’t.”
Baker looked up and smiled. Obviously the prosecutor did not see, or did not remember the surveillance footage from the convenient store that showed the all of the police officer’s windows shut. Reasonable doubt had been established.
“On the matter of whether the seized drugs shall be admitted as evidence,” the judge began. “I must rule that they cannot. The chain of custody may have been broken, and as long as there is a reasonable doubt that the tested drugs were not the substance seized from the defendant I will not allow them to be entered into evidence, no matter if an alternate explanation is likely or not. A reasonable doubt has been raised as to the authenticity of the substance.”
“Your honour, this is…” the prosecutor starting arguing.
“I move for a directed verdict!” Baker interrupted, attempting to finish the case here and now.
The judge looked at the prosecutor and nodded solemnly.
“You know what a directed verdict is, counsel. If the prosecution cannot establish the elements of a crime then it is a right at common law for the defendant to bring a motion for the court to direct a verdict of not guilty. In this case the only crime is trafficking of crystal methamphetamine and you do not have any drugs to present. Do you oppose the motion counsel?”
“No, your honour,” the prosecutor said looking at the floor as deflated as a balloon released too early by a cheap clown at a county carnival.
“Very well, I find the defendant not guilty,” the judge proclaimed smacking his gavel. “The substance shall be forfeited to the Crown but otherwise the defendant is free to leave. Dismissed.”
◆◆◆
“We won! This is why you’re the best, Mr. Desjardins!” Marcus Freeman told Baker hugging him in the courtroom hallway.
“Yes, thank you Marcus,” Baker gently pushed him away. “But remember how lucky you were today. You were caught red handed and you got extremely lucky that I found something, but even the best defence attorney can’t help you all the time. If you get caught again, call me, but you’re probably not getting away with it again.”
“Ha, I won’t get caught again, I can tell you that, Mr. Desjardins,” Marcus said with a grin from ear to ear. “Now I got to go call my old lady so she can pick me up. Lord, she’s going to be some happy I’m free!”
I’m sure she’ll be ecstatic, thought Baker as he took out his phone to text Connie. I hope for her own sake she had already left town.
As Baker left and started driving to pick up Connie, he began to have a sinking feeling of what Marcus Freeman might do to his girlfriend that night. He had to put that out of his mind though, or else he wouldn’t be able to focus on hunting down where Mary was.
He was afraid someone like Marcus Freeman, the man he just put back onto the streets, had Mary somewhere.
Chapter 7
The Hunt Continues
“How are your parents?” Baker asked Connie as she got into the passenger side of his car. She was dressed a little more casual today and looked like the fine line between hopeful and despondent. Baker was starting to worry about her more than he was worried about Mary.
“They’re okay. Worried, but they could be worse I suppose,” Connie looked at him pleadingly. “Do you think we’re going to be able to find her?”
“We can try Connie,” Baker said as he put his car into gear. “That’s all we can do.”
Connie didn’t respond. They had already discussed over text messages that she and Baker would be driving down to the Thirsty Lion Pub where Mary was last seen and where Lauren, Danielle, and Amata were waiting to meet them to talk about her disappearance. He didn’t know any of the girls, but from the little he was able to glean from searching social media he could tell they were far more into the bar and party scene than Mary or her sister were.
The Thirsty Lion was an Edmonton staple, one of the pubs people would go to near the end of the night when they were done clubbing but still wanted to keep drinking for a little bit longer. That type of person didn’t seem like Mary, but Mary definitely was the type of girl who would go along just to keep her friends company. During the day and early evening, people would go there for supper and it only became the post-party place much later at night. The crowd right now was a little older than it would have been on Thursday night.
“Hi girls,” Connie greeted the three who were already seated at a booth in the back of the pub. She slid in next to Amata and Danielle while Baker sat across from her and next to Lauren. The first thing that Baker noticed was how beautiful they all were, objectively. Connie was more of his type (not to mention closer to his age) but these were the type of girls that everyone at the club would try to approach. And they’d usually end up going home alone anyways, but by choice and not by force.
Danielle was petite and thin with long blond hair, and a light complexion. She held herself up with the air of dignity that often comes across as snobbiness though Baker could tell that wasn’t what she was trying for. Lauren was a brunette, wearing no make-up now but still had that girl next door charm and beauty to her, which was accentuated by the plaid top she was wearing with the top two buttons undone. The hint of freckles she must have sported as a child only accentuated this. Amata was a woman of darker complexion, with long black hair but still beautiful in an exotic way the other two girls didn’t have. It was her perfume that Baker smelt the strongest of the three and under different circumstances it would be alluring. But unlike when he was twenty, he wasn’t here to pick up. He was here for answers.
“I don’t believe any of you know Baker Desjardins,” Connie introduced him to them. “He’s an old… friend of mine, and he knew Mary too. He’s a lawyer and he said he would help me find my sister.”
“How do you do?” Baker asked all of them shaking each of their hands while making eye contact. He resisted the urge to give them his card, which was at this point almost instinctual. He felt himself lowering his left hand from his inner pocket and hoping that nobody noticed.
After Baker sat back down, Danielle whispered something in Amata’s ear and they both started giggling. Lauren noticed and was not too pleased.
“Girls, stop that. This is serious!” she scolded.
They stopped laughing and Amata rolled her eyes just a little bit.
“Fine,” she sighed. “You’re right this is probably serious. But I still think there’s a chance she just took off after Josh left her and we’ll hear from her again by this weekend.”
“That doesn’t sound like Mary,” Lauren reminded them.
Baker felt a foot kick him ever so gently under the table, and when he looked up Danielle was looking back at him with a dirty smile on her face.
“You know, I’ve dated a lawyer before,” she said. “It sounds sexy.”
“That’s nice,” Baker replied. “I’ve never dated a waitress before, though, and I don’t intend on starting now.”
Amata laughed at this slight while Danielle got offended until a look over at Connie and Lauren convinced them that this was a serious matter. It really wasn’t the time to hit on Connie’s ex-boyfriend in front of her – though in other circumstances she probably would have done the same thing.
“I’m a barista, not a waitress,” she finally mumbled.
After exchanging these pleasantries, Baker began to grill them about Mary and what happened that Thursday night. Though he was much nicer with them than he was with the officer on the stand earlier that day. This was helping a friend, not cross-examination he had to remind himself.
“So walk me through that night, ladies. Tell me everything that happened from when you guys met up, to when you split up for the night,” he probed.
“Well, we were all out to celebrate the new job I was just offered in Calgary,” Danielle started. “So we went to a few clubs down on Whyte – first we went to Teddy Zee’s and then we went to the Rocking Cowboy, where we stayed most of the night. By about 11:30 we were all getting tired but none of us went home so we came here, to the Thirsty Lion.”
“Yeah, we were all together at that point,” Amata continued. “It was the drunkest I’ve ever seen Mary but that was mostly our fault. We were doing shots at the Cowboy and she kept telling us that she didn’t want any but we kept ma
king fun of her until she did. We were all pretty inebriated but I think she was worse than any of us. Low tolerance.”
“Ok, so what happened next? Why did she leave here?” Baker asked.
“Well like I said, she was really drunk,” Amata went on. “And so we asked her if she wanted to go home. She said she did and hugged all of us and was going to call a taxi when we told her to get an Uber. She didn’t even know what that was.”
“I set it up on her phone for her,” Lauren said sadly. “I… I didn’t know things would turn out like this or I would have went with her and stayed at her house. I just thought she would be fine.”
Lauren started to cry and Baker handed her a paper towel from the table.
“Thank you,” Lauren said wiping her eyes. “She didn’t know what an Uber was, she probably got into the wrong car. I should have went outside with her… but it was just so cold and she said she was fine so I just let her go. Now I hope and I pray every night she’s okay, Baker.”
“I know, it’s not your fault,” Connie told her reassuringly patting her hand. “And we will find her, she’s my sister.”
“I really hope so,” Lauren said placing her hand on top of Connie’s. “If there is anything we can do just let us know.”
“So there were no texts or anything like that after she left the bar?” Baker asked.
“Well there was one,” Danielle said. “It was only a few minutes after she left and she texted me ‘Congratulations on the new job again’ and I responded ‘Thanks, get home safe.’”
Danielle showed Baker her phone confirming what she said. The time of this last text was a few minutes after midnight.
“When did she last text you again, Connie?” Baker asked.
“It was around quarter after eleven. She said she was getting really drunk but that she was going home soon. I asked if she wanted a ride and she said she was fine, she was on Whyte and only lived about a ten minute cab ride away, while I was about forty minutes away from the bar so I know she was just looking out for me.”
Connie stared down at her hands as she spoke. Baker could tell how much she blamed herself for her sister’s disappearance, which may have been why she went to him in the first place. Damn it, if they’re going to get to the bottom of this they’ll all need to focus. Now is not the time for self-blame and doubt. If they don’t find her, he’ll spend enough time blaming himself for everyone.