I wondered how they knew it when they saw it.
I liked it that the prosecution went first. I liked it that we could present our own witnesses, and then drag theirs back to testify again if we wanted them to. I didn’t mind that the system was skewed toward the defendant. In this case, the defendant was me.
The State offered its medical examiner to lay their foundation. A woman had been killed by a gunshot. The coroner’s deputy testified as to how and where and when the victim had been struck, what the damages were, and what, if any, other injuries she might have suffered. My attorneys emphasized that the woman had been killed instantly. They treated the deputy coroner as if he were an old friend. They asked very few questions and sat down. They disputed nothing. Everyone knew that Jackie Chang had been killed in the gunfight.
Then came the forensic experts who testified in excruciating detail about shell casings and slugs removed from the wooden structure where the gunman had hidden. Mr. Chen had them enumerate the number of 9mm shell casings found as opposed to the number of .45 ACP casings, their locations, the total number of firearms extrapolated by the laboratory based upon the shell case markings and the striations on the bullets. He asked if they had matched any bullets to any particular firearm. They had. To only one, the gun found several days later hanging from the corpse of the young man who had been murdered by persons unknown. Shell casings found on the roof of the building across the street, and bullets removed from bodies, both living and dead, matched that firearm. Mr. Chen also asked if there had been any fingerprints found on the .45 shell casings, and if so, if they had been matched to any particular individual.
“No,” said the technician. “There were no fingerprints.”
“So you cannot tie that firearm to any particular individual, is that correct?”
“That is correct.”
By the time the forensics people stepped down from the stand I wasn’t certain that I knew what had occurred and I had been there. The lasting impression from their testimony was that they had identified the dead shooter’s weapon using two inalienable methods. Of a .45, Mr. Chen had reduced the memory of their earlier testimony to a distant murmur. Yes, there had been a .45. No, nobody had been shot by a .45. But several people had been shot by the other gun, the gun somehow connected to a corpse.
Oddly enough, the State did not present my bloody holster. That particular piece of evidence was a double-edged sword, as Chen explained it. If they presented it, it could support their case against me—that I had come prepared and possibly planning violence, and that I had come with a large-caliber automatic firearm, and, by implication, had used it. The other edge of that sword was the blood on the holster, how it got there, whose it was, and the circumstances surrounding the mixture of blood soaked into the old leather.
Eyes twinkling, gold teeth flashing, Mr. Chen said that they had probably weighed the risks and rewards and decided that the jury should never view the holster. He said that this must have been the subject of lively debates in the prosecutor’s office. Their conundrum, he said, was that without it, and without an eyewitness testifying to the fact of my using a firearm at the scene, the state had nothing to connect me to the shooting.
“You might as well have been passing by,” he said, smiling. “They have little to work with and they know it.”
The prosecution called its last witness, the police officer who had sworn that he had seen me indiscriminately fire a pistol during the gun battle. Turley took the man through the sequence of events on that bright spring day. When asked if the gunman was present in the courtroom, the cop pointed in my direction. I felt the jury turn and examine me, as if expecting horns.
And the prosecution rested.
Judge Santo looked at our table, raising her eyebrows. “Your witness, Mr. Chen.”
“We have a few questions, Your Honor,” said Albert.
“I’ll bet you do,” said Judge Santo. “Mr. Kelly, you will remember that you’re still under oath.”
Mr. Chen led Kelly through his previous testimony. The man had been insistent that I was shooting. He saw me, he said, firing blindly. His testimony was damning and specific. I was there, I was armed, and I was using a pistol in what the prosecution tried to characterize as a gang war.
Mr. Chen allowed all of this damning testimony to be repeated. He emphasized the police officer’s main points. He made me look like evil incarnate.
And then he paused and lowered his chin onto his chest, as if examining something on the yellow pad in front of him.
I looked. It was empty.
“We have heard your testimony as to your actions on that day, Mr. Kelly,” said Mr. Chen in his soothing and gentle voice. “Do you recall filing a report?”
“A report?”
“A situation report. A sort of after-action report. Department policy requires it.”
The man nodded.
“Excuse me, please, but could you answer verbally? This young lady,” he indicated the court reporter, “has no symbols for a nod.”
“Yes.”
Mr. Chen went to the defense table and Andrew White handed him a piece of paper. “Is this your report, sir?” Chen handed it to the judge, who entered it and marked it as evidence. When she returned it to Chen he placed it before the man.
“Yes.”
“This is your handwriting?”
“Yes. It’s mine.”
“In this report you state that you did not fire your revolver.”
“We have to account for every bullet. I would have had to account for the reason I fired my service pistol.”
“Rightly so, Mr. Kelly. And so you did not fire your service revolver at any time during the events of that afternoon in May. Is that correct?”
“I could not—”
“Please, sir. That was a yes or no question. Did you fire your revolver?”
“It’s a pistol.”
“Is there a difference?”
“The department issues us an automatic pistol. We don’t carry revolvers. An automatic pistol is self-loading. In a revolver the chamber is the cylinder, which turns.”
“You are an expert on firearms, Mr. Kelly?”
“Sort of. I shoot a lot.”
“So you carry a pistol, is that right?”
“Yeah. A pistol is the correct term. Not a revolver.”
“So, did you fire your service pistol at any time during the events of that afternoon in May? Did I get my terms correct this time?”
“Yes.”
“Is that a ‘yes’ you fired your pistol or a ’yes’ I got my terms correct?”
“You were correct.”
“Thank you. Now did you fire your pistol?”
He hesitated. “No.”
“Was your pistol loaded?”
“Yeah.”
“Did you chamber a round?”
“Huh?”
“Did you chamber a round? As you’ve stated, the San Francisco Police Department issues automatic pistols to its officers. An automatic pistol does not fire unless you chamber a round, pulling back the slide to bring a round into the firing chamber. Did you chamber a round to make it ready to fire, sir?”
“I … don’t remember.”
“Did you remove your pistol from its holster?”
“I don’t really remember.”
“That is understandable. Have you ever been under fire? Has anyone ever shot at you before?”
“No. This was the first time.”
“Have you ever had to pull the trigger of your pistol while it was aimed at a man or a woman while you were on duty?”
“No.”
“Were you in the military?”
“No.”
“So this was your first time ever under fire?”
“Yes.”
“Difficult circumstances, weren’t they? Did you feel that your life was in danger?”
“Yes.”
“Did you feel that others’ lives were in danger?”
“Of cour
se.”
“Are you a good shot, Mr. Kelly?”
“Pardon?”
“Are you adequate with the pistol that you carry when you are on duty with the San Francisco police department?”
“I’d say so.”
Chen consulted his notes. “And your records do indicate that you, in fact, are rated expert on the shooting range. You have won departmental trophies. Isn’t that so?”
“I won a few rounds in the combat pistol range. Hogan’s Alley.”
“You won?”
“I won some competitions.”
“Hogan’s Alley. What is that?”
“It’s like a street. Different targets jump out at you. You have to make a determination whether it is a civilian or a criminal. If it is a criminal, and if it represents an armed threat, you draw your weapon and you shoot.”
“Your weapon?”
“My pistol.”
Chen nodded. “And you won such a competition?”
“Once or twice.”
“I see here you won it four times. You are too modest, Mr. Kelly.”
“I’m pretty good. I guess I forgot how many times I won it.”
“You’re pretty good. So it would be accurate to state for the record that you are an excellent shot. Under simulated combat conditions, you are expert enough to see the target, determine instantly if it is good or bad, determine whether or not it presents a threat, then draw your weapon, fire, and hit the target. And all in the course of a split second. You are pretty good with your pistol, good enough to win competitions against other professional police officers. Isn’t that correct, sir?”
“Yes.”
“Proud of that?”
“Yes.”
“So last May, people were being shot right in front of you. For real this time, not on a range. Granted, it was the first time you had ever experienced something terrible like that. Granted, you were not prepared for such a circumstance. You were only supposed to direct traffic for a funeral that day. Isn’t that correct?”
“Yeah … Yes sir.”
“What is the policeman’s primary duty?”
“To keep the peace.”
“Well … I was thinking of why you are out there on the street. Keeping the peace is part of it, of course. But what is the primary duty? Why do you carry a firearm?”
“To protect the public.”
“To protect the public,” repeated Chen, his hand on his chin, his posture that of a supplicant. “So if people were being shot down in front of you, and if you were an armed and trained policeman, on duty, proficient, no, expert on the use of your weapon, wasn’t it your job to remove the pistol from your holster and chamber a round and use the training and the expertise you so obviously possess to protect those innocent people?”
Kelly sat riveted to his chair, shaking his head.
“We are waiting for your answer, sir.”
“No. Yes. I was going to …”
“You didn’t look, did you?”
“What?”
“It’s nothing to be ashamed of. Survival is an important instinct. We all have it, in one form or another. You heard the gunshots and you dove into the gutter and you kept your head down until the shooting stopped. Isn’t that correct, sir?”
“No!”
“You did not fire your pistol. You did not chamber a round into your pistol so you could return fire at the man who was shooting the innocents. You did nothing to save others. You saved yourself. Admit it, man, you’ll feel much better.”
“I’m going to object, Your Honor,” said Brancato from the prosecution table. “This police officer is not on trial.”
“My client is on trial because he is accused of doing what this officer should have done and failed to do.”
“Gentlemen,” drawled Judge Santo. “Please. In light of the fact that the defendant is contesting for his life and freedom, Mr. Chen is pursuing a line of questioning that has merit. I shall therefore overrule the objection. Please continue.”
“Mr. Kelly,” said Mr. Chen in a soft and gentle voice. “We have a number of witnesses who will swear that they saw you with your face pressed against the curb, hiding under cover. It is no shame to be frightened. I would have done the same had I been there.”
“Yes.”
“Yes, you saw nothing because you had your face turned away from the scene and you could not see anything?”
“Yes.”
“So you could not have seen my client holding a gun.”
“No. I must have been mistaken.”
“An easy mistake. Completely understandable. I’m sure no one will fault you for making that kind of an error. Anyone could have done that.”
“Thank you,” Kelly said, as if Chen had given him absolution.
“So, once again for the record, you did not see my client, Mr. John Caine, over there, with a firearm in his possession. You did not see him fire a pistol. You did not even see him hold a pistol in his hand. The next time you saw him was when he had already been shot in the back and had his hands inside the neck of another man, effectively saving his life. Isn’t that correct, sir?”
“Yes.”
Mr. Chen stepped back. “No more questions, Your Honor.”
The judge looked to the prosecution table. “Redirect.”
Turley stood up. He looked shaken, as if this trial meant something to him. Brancato wrote something on his yellow pad and shoved it across the table. Turley glanced at it and nodded to himself. “Your Honor,” he said, “we have a few questions.”
“Proceed.”
“Mr. Kelly, you testified before the grand jury and in earlier proceedings that you saw the defendant with a gun in his hand. And now you tell the Court that you didn’t see it. Which version is correct?”
Mr. Chen patted my arm.
“I just said,” answered Kelly.
“Did you, or did you not, see the defendant, John Caine, fire a handgun during the gang shooting—”
“Please,” said Mr. Chen to the judge, his voice soft, yet allowing the courtroom to hear the steel beneath the velvet. “We have been over this before. I am forced to object to Mr. Turley’s characterization of the events of that day as a gang shooting. The prosecution presented no evidence of gang involvement or violence. The gunman has not been identified. That crime remains unsolved. The State has not shown any connection between the actual perpetrator of the crime and my client, which, if I read the law correctly, is crucial to the charge.”
“Your Honor, this is clearly a gang war shooting!”
“Try to remain calm, Mr. Turley,” said the judge. “Counsel is correct. You presented no evidence of gang involvement. Objection sustained.”
Turley took a moment to compose himself. “Mr. Kelly,” he said after a long pregnant pause, “did you see the defendant fire a gun?”
“No.”
“Did you see him hold a gun?”
“Well … not really.”
“Not really?”
“No. Probably not.”
“Which is it?”
“When I reached the coffee shop I found him on the floor all covered in blood. He lay next to an Asian male. He was holding his throat. I thought he was choking him. I saw his suit coat was up in the back, and he had a large leather holster on his belt, right over the kidney, the way the FBI wears them. So I thought I saw a gun.”
“Thank you.”
“I wasn’t sure. I couldn’t see his hands.”
“That will be enough,” said Turley.
“The holster was one of those leather ones that is form-fitted to a mold of the firearm. This one could only have been for a .45 Colt automatic. I recognized the outline—”
“Your Honor!”
“He could have had a gun.”
“You may step down,” said the judge. “A copy of this transcript will be forwarded to your superior officer. And I shall take it under consideration, as well. If you hadn’t gotten creative with the facts we most likely would not be was
ting our time here today.”
“I object!”
“Please approach the bench. All the attorneys. Not just Mr. Turley.”
When they assembled in front of her, the judge smiled her catlike smile. Her voice carried. Even though she spoke in a low voice, I could hear her clearly. “You object to what the Court is saying, Mr. Turley?”
“It’s prejudicial. And in front of the jury.”
She nodded. “I am about to excuse the jury. If you don’t mind, Counselor.”
“No, Your Honor.” Turley’s face was hot.
“Thank you.” She spoke up, addressing the jury. “The jury will be excused momentarily. I apologize for this inconvenience. We shall try not to take too long. Make yourselves comfortable, ladies and gentlemen.” She turned her attention back to the attorneys in front of her. “I think I’d be more comfortable in my chambers. Would you please join me there? And bring the defendant.”
45
The bailiff closed the door to the judge’s chambers and we were alone with her and the prosecution. It was a plush office, with teak paneling and a desk the size of a small state. It smelled vaguely of lemon and lilac, but it felt like a lion’s den.
“Sit down,” said Judge Santo, regally taking a seat in her oversized leather chair behind the desk. She indicated a collection of chairs and tables placed like petitioners before her. There were two groups of furniture, theirs and ours, separated by a round marble-topped table. The arrangement had been carefully thought out. This judge had done this a time or two before.
“Was that the best you’ve got?” She regarded the prosecution team with a baleful glare.
“Officer Kelly was our last witness.”
“That was your case?”
“Yes, Your Honor.”
“Your case just got shredded,” she said to Brancato. “You didn’t have much before. Now you’ve got nothing.”
Brancato sat silent in his chair. He looked through a file in a Manila envelope as if he could find salvation inside.
“Mr. Brancato?”
“I’m sorry, Your Honor, but we have other evidence.”
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