by Kenneth Eade
Brent noted two women on the jury who could not hide their expressions of disgust and kicked himself for not using some of his peremptory challenges to kick off the teetotalers. That would cost him, and cost William.
“As a result of your interview of Fenton Washington, can you describe his condition?”
“Mr. Washington was also drunk.”
In Taylor’s trademark move of allowing the jury the lunch hour for all the damaging information to set in, he did not finish with Salerno until 11:58, and court recessed two minutes early.
* * *
Salerno continued to testify after the break, carefully identifying every report and every piece of physical evidence. He testified as to the proper safekeeping and cataloging of every scrap of physical evidence found on the scene, including the opened can of beer found in William’s car and the car itself. Defense attorneys often argue that evidence could have possibly been tainted because the police cannot account for its custody from the scene of the crime until the trial. That was not going to happen in this case.
Brent had few questions for Salerno on cross-examination. He simply did not want to reiterate the fallibility of his two main witnesses, which Taylor would surely emphasize on redirect. Instead, he ventured into an area that was not covered in Salerno’s testimony.
“Detective Salerno, does the Los Angeles Police Department have a "Use of Force Review Division"?”
“Objection! Outside the scope of direct,” barked Taylor.
“It is outside the scope, Mr. Marks.”
“Yes, Your Honor. I can either recall Detective Salerno as an adverse witness or simply wrap it up now to save time.”
That lit a fire in Judge Schwartz’s heart. He loved the idea of saving court time.
“Overruled. Please proceed, Mr. Marks.”
“Thank you, Your Honor.
“Yes, there is a “Use of Force Review Division".”
“And what is the purpose of that division?”
“Its purpose is to examine and analyze the lethal, non-lethal and less-lethal force used by LAPD officers throughout the year and provide an overview of their investigation.”
“And do they issue periodic reports on their findings?”
“Yes, they do.”
“Are you familiar with these reports?”
“Yes, I am.”
Brent asked the Clerk for Officer Albright’s firearm, which he carefully took from her, making eye contact from the gun to the jury and back on the gun again. He stood in the well in front of the witness box, holding the weapon in his hand as if it would go off by itself.
“This is a very dangerous instrument, isn’t it, Detective Salerno?”
“Yes, it is.”
“This is an 8045F .45 caliber Beretta, isn’t it?”
“Yes, it is.”
“Do you know the capacities of this pistol, Detective?”
“I am familiar with them, yes.”
“Objection, Your Honor. The capacities of the pistol are irrelevant.”
“Your Honor, how could the capacities of the instrument of death in this case be irrelevant?”
“Approach the bench, please.”
Brent, Taylor, and the judge huddled at the bench to discuss the objection.
“What is the relevance of this line of questioning, Mr. Marks?”
“Your Honor, these are foundational questions which I will connect with the policies of the LAPD for the use of force, including firearms such as this.”
“This is a capital case, so I’ll allow this line of questioning. But please connect it up before we lose the jury.”
“Yes, Your Honor.”
Back at counsel table, Brent restated the last question, and Salerno answered, “This is a recoil-operated, locked breech semi-automatic pistol.”
“By semi-automatic, it is capable of firing more than one round in rapid succession, is that correct?”
“Yes.”
“Given that kind of power, wouldn’t you agree that the only purpose for using a weapon like this is to kill?”
“Objection, Your Honor: argumentative!”
“Certainly discharging a weapon such as this in the presence of other people is likely to kill or injure someone, Your Honor.”
“Overruled.”
“The purpose of using a weapon like this is to inflict grave bodily harm or kill to protect the officer, other police officers, or the public.”
Salerno knew which side he was on, but he could not hide the respect he had for the weapon.
“Are there policies in effect at the LAPD regarding the use of firearms such as this?”
“Yes.”
“And you are familiar with these policies, correct?”
“Of course.”
“In fact, every officer in the LAPD is trained on these policies, isn’t that correct?”
“Yes.”
“And these policies are contained in a manual that every officer is issued, isn’t that correct?”
“Yes.”
“Am I correctly stating this policy: ‘that personnel may only use that force which is “objectively reasonable” to defend themselves, defend others, to effect an arrest or detention, to prevent escape, or to overcome resistance?”
“Yes.”
“And an officer is authorized to use deadly force only to protect himself or others from an immediate threat of death or serious bodily injury, to prevent a crime where the suspect’s actions place persons in jeopardy of death or serious bodily injury, or to apprehend a fleeing felon for a crime involving serious bodily injury or where there is a substantial risk that the suspect will cause death or serious bodily injury to others if he or she is not quickly apprehended?”
“That sounds correct.”
“The very act of drawing a weapon is the use of deadly force, isn’t it, Detective?”
“Objection: argumentative!”
“I’m asking for an expert opinion, Your Honor, within the confines of LAPD policy.”
“Overruled. The witness may answer if he has an opinion.”
“When an officer draws his weapon, that is an exercise of deadly force, isn’t it, Detective?"
Salerno hesitated. He knew where Brent was going, but he was up against the wall and had to answer honestly.
“Yes.”
“In fact, by definition, the manual says that the use of a weapon constitutes deadly force, correct?”
“That is correct.”
“And, pursuant to the policy of the LAPD, an officer should only use deadly force if he has no other clear alternative; isn’t that correct?”
“Yes, it is.”
CHAPTER THIRTY
Brent couldn’t rely on just his cross-examination skills to blow a cloud of reasonable doubt in front of the jury like some kind of judicial magic trick. He needed to find out what Jack had been working on; and quickly.
He started, as usual, at the hospital, where Jack’s condition was about the same; although his vitals had improved a little. Jack’s personal effects, his wallet, his phone, and everything else had not been on his person when he was found. It appeared as if he had been robbed. His attending physician, Dr. Gregorian, was encouraging about Jack’s condition. “Usually, and we don’t know why it is, the systems just come back online and the patient just wakes up.”
“Just like that?”
“Just like that. And all we do is keep them alive and just wait.”
Brent talked to the motionless, slumbering Jack about the case. Maybe he’ll decide to wake up and help me before it’s too late. After about half an hour, Brent decided to give up on waiting for Jack (at least for the time being) and ventured out into the underworld to work Jack’s case – their case.
Brent located Daisy easily this time and took her for dinner at a local Chili’s. As Daisy wolfed down a rack of ribs and fries and a bathtub-sized blended Margarita, she brought Brent up to date on what was being said on the streets.
“I hear that there’s a
group of cops who have taken over running the girls around here.”
“Including you?”
“Nope, I’m independent.”
“Self-employed.”
“You got it. But they ran my girlfriend, Tiffany. That’s how she got all messed up.”
“Which, I suppose, is also the reason you remained self-employed.”
“You’re smart. You a lawyer or something?”
“Very funny, Daisy. Seriously,” Brent asked, stirring his cup of coffee with milk, “don’t you ever think about going home? You don’t seem to me like the kind of girl who agrees with life on the streets.”
“I’m never, ever going back there!”
“Evil stepmother?”
“Evil stepfather. With nasty thoughts and nastier hands. I decided that if I was gonna be treated like a piece of meat, I was going to charge for it.”
Daisy finished her ribs and ordered a quesadilla and another double Margarita. At this rate, by the time she reached her 21st birthday, she wouldn’t need to go out drinking.
“You’ll probably be glad to know that I think I found your Trixy,” she finally said. “They moved her out to Studio City to work Ventura Boulevard. You should find her there most nights.”
Brent thanked Daisy for the leads, paid the bill, took her back to Sepulveda, and dropped her off. Then he went out to seek the elusive Trixy.
The waiting paid off a little after midnight. Brent spotted a girl exiting a white Mustang at a Shell station. The Mustang drove away and the girl went inside to buy a pack of cigarettes. As she exited and headed down the boulevard, she passed right by Brent’s car, and he knew for sure that it was her. He rolled down his window and she took the bait.
“Hi Honey, wanna date?” she asked, as she approached the car. “Oh, it’s you! Get away from me. If they see me with you, I’ll be in deep shit,” she said as she pushed away from the window and broke into a trot.
Brent jumped out of the car and followed, walking quickly to try to keep her pace. She turned around and yelled: “Quit following me – you’ll be sorry!”
Ignoring her, Brent continued and picked up the chase. When he was close enough behind her to smell her perfume, he reached out and grabbed her by the elbow.
“Let go of me!” she cried.
“Calm down. I just want to talk to you.”
“You’re such an asshole. Don’t you get it?”
Suddenly, a black and white patrol car pulled up, windows open.
“This man bothering you, ma’am?" asked a young policeman.
Trixy looked nervous. Maybe it was because she was afraid of being arrested for prostitution. Maybe something more.
“No, no, I’m fine. It was just a mistake.”
“Why don’t you step in the car, ma’am? You’ll be safe with us.”
Somehow it didn’t appear that Trixy was buying that.
“I told you, sir,” she said to Brent. “I don’t know anything about your sister. You’ve mistaken me for someone else.”
“I’m sorry to bother you, Miss. Officers, this is all a big misunderstanding.”
“We’ll see about that. Let me see your driver’s license, sir,” said the young blond cop, as he stepped out of the car.
Brent pulled out his wallet and gave his license to the officer.
“You looking for a date tonight?” he asked.
“No, no. It was just a misunderstanding. I thought I knew that girl.”
“This is a heavy area for prostitution. Stay right here while my partner checks on some things,” he said as he handed Brent’s ID to the driver of the police car.
After about half an hour, the police let Brent go. He was happy not to be spending the night in some holding cell somewhere, and decided to call it a night.
CHAPTER THIRTY ONE
On the second day of Taylor’s case-in-chief, Brent still had not excused Detective Salerno. He was on a roll – an unreasonable force roll. Salerno took the stand. The jurors were all buzzed up on coffee and their eyes were open. If Brent was lucky, he would be able to monopolize the morning and Taylor would be doing his redirect of Salerno in front of twelve hungry, droopy-eyed, sleepy people who were thinking about dinner or calling home – anything but the trial.
“Detective Salerno, according to LAPD policy, an officer has several types of force available to him, in varying degrees according to the particular situation; isn’t that true?”
“Yes.”
“He can use verbalization. In other words, give the suspect a command, correct?”
“That’s correct.”
“Or he can use bodily force, like the application of body weight, take downs, wrist locks, strikes, kicks and punches, correct?”
“Yes.”
“In fact, that is the force you observed Officer Albright using in the video before he pulled his gun, isn’t that correct?”
“Yes, he was using his body weight to subdue the suspect.”
Taylor was anxious, like a dog waiting for the food bowl to be placed on the ground, or a caged wild animal. But Brent still had the floor.
“An officer also can use OC spray, or pepper spray, correct?”
“Yes.”
“Or a Taser, which completely incapacitates the suspect; isn’t that correct?”
“If done properly, yes.”
“Was Officer Albright’s Taser one of the items of evidence seized from the scene?”
“Yes, it was.”
“And was it fully charged and in good working order at the time of seizure?”
“Yes.”
“Yet he chose not to use it.”
“Objection! Calls for speculation and is argumentative!”
“Sustained. The jury will disregard the question.”
Too late. It was the most interesting thing they have heard so far. Bring it home, Brent.
“And Officer Albright also had the option to use an impact device, such as his baton, correct?”
“Yes.”
“And he already, in fact, used his baton, correct?”
“Yes.”
“Yet, at the point where Officer Albright had his body weight applied to the body of Mr. Thomas, he chose to use deadly force by withdrawing his pistol, isn’t that correct?”
“Objection! Argumentative!”
“Sustained. The jury is cautioned to disregard the question.”
“No further questions, Your Honor.”
“Redirect?”
“Thank you, Your Honor,” said Taylor, as he finally got the chance to rehabilitate his witness.
“Detective Salerno, an officer’s choice of what type of force to use is determined by the circumstances of the situation, isn’t it?”
“Objection: leading!”
“Overruled. It’s foundational. The witness may answer.”
“Yes, we cannot second guess or apply our judgment in hindsight to an officer who feels the need to protect himself or his partner from bodily injury.”
Taylor elicited what LAPD policy allowed an officer to consider in choosing what type of force to apply. These factors included: whether the suspect is posing an immediate threat to the safety of the officer or others, whether the suspect is actively resisting arrest, the time available to make the decision, a reasonable officer’s experience and training, and literally everything in the environment around the officer and suspect’s immediate vicinity.
“Detective Salerno, in your opinion, given your examination of the reports and the facts and circumstances surrounding this incident, was it unreasonable for Officer Albright to pull his weapon?”
Brent couldn’t object. He was the one who, with full judicial latitude, had used Salerno as an expert witness. Now came the blow that would have the effect of erasing or at least diminishing the impact of his entire line of cross-examination.
“I cannot say that it was unreasonable under the circumstances.”
Taylor’s circus was back on track, and he was again the ringmaster.
/> * * *
The Taylor show continued after the break with a video expert who played the first cut of the video that TJ had taken on the scene; first all the way through, then he walked the jury through individual frames he had blown up and enhanced to show that William had grabbed Officer Albright’s gun. On cross-examination, Brent aimed to destroy the expert, a short, balding tech geek with goofy tortoiseshell glasses. He showed the jury a frame of the video that had been blown up, showing William and Albright struggling for the gun.
“Mr. Tanner, isn’t it true in this blown-up frame you have identified – it is not possible to see whether Mr. Thomas or Officer Albright has control over the gun?”
“I wouldn’t say it's impossible.”
“Move to strike as non-responsive, Your Honor.”
“Granted. Please answer the question.”
“As it is framed, I cannot answer the question. Nothing is impossible.”
Oh come on! Just answer the damn question!
“Move to strike, Your Honor.”
“Granted.”
“Mr. Tanner, can’t you answer any question honestly?”
“Objection! Argumentative!” called Taylor, shooting a nasty glare at Brent.
“Sustained. The jury will disregard Mr. Marks’s question."
“Mr. Tanner, looking at the frame you have blown up, you don’t see anything that we don’t see, isn’t that correct?”
“Yes, I would say that that is correct.”
Then just say it!
“To me, I just see a picture with two pairs of hands on one gun: a gun that is pointed directly at Mr. Thomas’s face…”
“Objection, Your Honor: counsel’s opinion is irrelevant and the question is argumentative.”
“Withdraw the question, Your Honor.”
“Sustained.”
“You testified it was at this point in the video where my client took the gun away from Officer Albright. However, isn’t it true that this frame you’ve blown up doesn’t show the gun being wrenched from Albright’s control? On the contrary, it shows it clearly that it did not leave his hands; isn’t that correct?”
“Objection: compound.”
“Overruled. You may answer the question.”