by Kenneth Eade
“Were you bleeding?”
“No, but…”
“Move to strike after ‘but,’ Your Honor.”
“Granted.”
“Officer Albright, you also kicked Mr. Thomas, isn’t that correct?”
“He was attempting to wrestle me to the ground. I kicked him away to protect myself.”
“You kicked him in his testicles, didn’t you?”
“No. Certainly not on purpose. I kicked him away to protect myself.”
“After you kicked him, he vomited, didn’t he?”
“Yes.”
“Then, after you broke his knee, broke his ribs, and kicked him in the stomach and testicles, you jumped on top of him.”
“That’s not how it happened!”
Brent read Albright’s testimony from the preliminary hearing into the record, including the part where he claimed to have no independent recollection of attempting to handcuff William, other than what was stated in the police report.
“That was your testimony at the preliminary hearing, wasn’t it?”
“Yes.”
“After you broke Mr. Thomas’s knee, you jumped on top of him, pulled out your gun, and stuck it in his face, didn’t you?”
“Objection: compound.”
“Overruled.”
“I didn’t!”
“And, as you pointed the gun in his face, you said, 'Nigger, your momma’s not going to recognize you at your funeral', didn’t you?”
“No!”
“No further questions, Your Honor.”
After redirect, Benjamin Taylor put on Dr. Harvey Saperstein, the medical examiner who performed the autopsy on Shermer.
“Dr. Saperstein, would you please describe the cause of death of Officer Shermer?”
“Officer Shermer suffered a single gunshot to the abdomen which penetrated the stomach and liver, shearing tissue and causing hypovolemic shock to the rest of his organs.”
“In layman’s terms please, doctor.”
“Certainly. The bullet entered the abdomen and passed through the stomach, and liver before exiting between the fourth and fifth back ribs. Death occurred from the loss of blood supply to other vital organs.” Dr. Saperstein’s detailed autopsy report was admitted into evidence. On cross-examination, the doctor identified the location of the entry wound, the trajectory of the bullet, and the exact location of the exit wound.
Next, Taylor called an accident reconstruction expert who had charted the reported positions of William, Albright and Shermer, as well as Shermer’s wounds, and who testified that, in his opinion, the fatal shot was fired from William’s perspective. During his testimony, he showed charts and diagrams with graphed angles and vectors, showing the trajectory of the bullet. Brent examined the faces of the jury members. Most of them looked puzzled. Some, such as the two automobile workers, looked confused, and the accountant, whom Brent would have thought could appreciate all the technical stuff, was dozing off.
Brent had to tread very lightly with cross-examination of this witness. The best time to discredit his report would be when Brent’s own expert was called to testify.
“Dr. Penson, your conclusions are all based on an original set of assumptions, isn’t that correct?”
“Yes, they are.”
“And those set of assumptions are data of where Officer Shermer was standing when he was shot and where William and Officer Albright were in relation to where he was standing, as well as the position of the gun, isn’t that correct?”
“Among other things.”
“All of these assumptions were gathered from the video, the autopsy report, and the police report of Detective Salerno; is that correct?”
“Yes.”
“So, if one of these assumptions that you used was not correct, your conclusion could be flawed: isn’t that correct?”
“I assure you, it’s not.”
“Move to strike as non-responsive.”
“Granted.”
“Doctor, if one of your assumed facts is not accurate, then your conclusion would also not be accurate: isn’t that correct?”
“Yes, I suppose it is. But I’m sure they are all accurate.”
“Were you there that night?”
“Objection: argumentative.”
“Overruled.”
“No, of course not.”
By the time five o’clock rolled around, most of the jury looked like they were already working on their shopping lists and dinner recipes instead of listening to the trial.
CHAPTER THIRTY SEVEN
While it was true that Brent had no obligation to present a defense, the jury could go either way at this point. Brent had to push them over the boundaries of what was plausible into the realm of reasonable doubt. To accomplish this, he was equipped with two expert witnesses, two drunk eyewitnesses, and a client who couldn’t remember anything. Not a great start, but one he had to accept and do the best with.
Brent checked with Commander Owen. Indeed, an investigation into possible corruption had been launched, and Daisy had agreed to be a confidential informant. Unfortunately, that was not going to help William’s case. So, instead of sending a process server out to serve her, he opted for the personal touch.
“What the fuck is this?” Daisy fumed, pushing away the subpoena as if it were a rotten piece of meat as she flicked her cigarette into the street. “Your cop friend told me that everything I say was confidential.”
“That’s for his investigation. This is for my client’s murder defense.”
“And you wanna add another murder on top of that?” she asked, popping a piece of chewing gum in her mouth. “These guys don’t care whether it’s corruption or murder or what-not. They’re gonna protect their own; which means I’m dead meat!”
“Hold on, hold on. I don’t need you to testify about their prostitution ring.”
“Oh no? What should I talk about? Donations for the Policeman’s Ball? Blow jobs for the task force?”
“Daisy, look. I just need you to tell what you know about John Albright.”
Her eyes opened fully and she stopped chomping on her gum.
“That nutty motherfucker? You must think I’m even crazier than he is.”
“Just tell the jury what you told me.”
“Yeah, right. And leave out the part about turnin’ tricks 'n shit. I can’t do it. Period. They’ll kill me.”
“You can testify on camera, secretly. I’ll get a gag order and exclude your identity from everyone but the jury and the attorneys: they’re barred from talking to reporters anyway, and they’ll be sworn to secrecy.”
She looked at Brent with distrust, as if he was a used car salesman pawning off his latest trade-in.
“The press won’t know anything, which means the cops won’t know anything. You’re a confidential informant in an active police investigation. I’m sure the Court will grant the motion, and if it doesn’t, I won’t put you on.”
“Really?”
“Really.”
“I can trust you?”
“Scout’s honor.”
“You were a Scout? Jesus Christ!”
“Eagle.”
“That means you believe in truth and justice, walking old ladies across the street, that kind of shit?”
“Pretty much.”
“Well, Mr. Eagle Scout, you’ve got yourself a witness. Do you do wills?”
Brent smiled and handed the subpoena to Daisy.
After leaving Daisy, Brent prepared an affidavit for the motion and called Owen on his cell phone.
“Don’t you believe in evenings?”
“Not during trials, I don’t. I know you don’t want to get involved, but I need to ask a favor. It’s to protect your CI.”
* * *
The final push to prepare was the only thing occupying Brent’s mind when he checked into his hotel that night. Everything was ready –but not as ready as it could be. He shuffled papers, reviewed his outline, re-read reports.
As he tossed and turned
in bed, Brent couldn’t stop wondering if he had covered it all. Something had to be missing. Something always was. But what is it? He couldn’t get it out of his head. Thinking was a mistake. Thinking of that phrase was an even worse one. The song 'I just can’t get you outta my head' by Kylie Minogue took center stage as his main brain earworm.
After he finally fell asleep, it seemed like only seconds until the series of tiny dreams began, starring Brent as a freshman in college, missing his classes or showing up to them naked. He opened his eyes to find that the sweat from his neck had completely soaked his pillow. He looked at the clock. Six a.m. Time to force myself to get up.
CHAPTER THIRTY EIGHT
The first order of business was Brent’s motion to present Daisy’s in-camera testimony. The motion was heard in chambers, with only the judge, the court reporter and clerk, and the lawyers present. Usually the defendant would be the one to object to this secrecy because it impacted on his guarantee to confront witnesses against him; but it was William who was asking for it in this case. Law and order Judge Schwartz had no choice but to grant the motion, which was supported by a declaration from Commander Owen, and Benjamin Taylor was charged by the judge with keeping the identity of this witness secret from all prosecution witnesses. But it didn’t go without a protest from him.
“This witness is not on the witness list, Your Honor.”
“She’s a rebuttal witness,” said Brent.
“I’m sorry, Your Honor, but this is not fair. I understand your tentative is to grant the motion, but I think we need a proffer as to what this witness is going to say.”
“Do you have an offer of proof, Mr. Marks?”
“Yes, Your Honor. Officer Albright has been described by witnesses as a model policeman who respects the law and has no propensity for violence. This witness will demonstrate a very different side to him: a side revealed in dealing with a detained prostitute where he acted with excessive force.”
“Then it’s inadmissible character evidence,” piped Taylor. “I move to suppress it.”
“That goes to the weight of the evidence, I’m afraid. Alleged prior acts of excessive force could be probative: we just have to determine whether they have a prejudicial effect,” said Judge Schwartz.
Taylor shuffled out of chambers, a dog denied his bone, with his tail between his legs. Brent, on the other hand, had a tail like a saber. The playing field had finally become fair – at least as much as it could be.
“All rise. Department N of the Superior Court of the State of California for the County of Los Angeles is in session, the Honorable Adam Schwartz, Judge presiding,” barked the Clerk.
“Good morning, ladies and gentlemen. Please be seated. Mr. Marks, are you ready to proceed?”
“Yes, Your Honor.”
“Then you may call your first witness.”
“I call Timothy Jones.”
TJ faced the Clerk to be sworn in, then took a seat in the witness box. Brent, seeking to deflect Taylor’s planned devastation of TJ on cross, led him to throw the jury some hints on what was to come. TJ introduced himself as a long-time friend of William’s from childhood, with all the biases that came along with that. Brent had him describe their behavior at the baseball game, where he and Fenton had drunk a lot of beer and William had abstained, as he was the designated driver.
“Mr. Jones, you and Fenton Washington were drunk when you left the baseball game: is that correct?”
“Yes, we were. We had been drinking beer during the game, like everybody else. William was our designated driver, so he didn’t have any beer.”
Brent had TJ recount the traffic stop, his use of the Google Glass to record the videos, and the officers’ behavior on the scene.
“Did you observe Officer Albright and William Thomas during the traffic stop?”
“I didn’t take my eyes off them.”
“About how far away from them were you during your observation?”
“About a car length. Fenton and I were handcuffed by the other policeman, and we were at the end of the car. Officer Albright and William were on the side of the road.”
“On the passenger’s side?”
“Yes, and so were we. I saw everything.”
“Could you hear what they were saying as well?”
“Yes.”
“Please tell the jury what you heard and saw from that point on.”
TJ recalled Albright to be aggressive and impatient. He withdrew his baton “for no reason” and shoved William with it, and William pushed it away. Then, Albright became “crazy” and whacked his baton against William’s knee, bringing him down, and then started hitting him all over with his baton, and kicking him. "Then he jumped on top of him.”
“Was it at this point that you started the series of videos?”
“Yes. I just kept telling the Glass to record. I couldn’t believe what I was seeing.”
“What did you observe next?”
“The other policeman was telling Albright to take it easy; cool off.”
“Those are the words he used?”
“No, it was something like, ‘we’ve got him, now just cuff him.’ Then Albright pulled his gun out and pointed it right at William’s face.”
“How far was the gun from his face?”
“Inches.”
“Then what did you observe?”
“Albright said, ‘Nigger, your momma’s not gonna recognize you at your funeral!’ and William pushed the gun away and it went off.”
“In which direction did he push it?”
“To the left, I think. William’s right handed.”
“And you and Mr. Thomas and Officer Shermer were standing opposite William’s feet, or his head?”
“His feet. I could see his feet, and the Officer’s back was to us.”
Brent had TJ identify all the raw video, which he would later connect up with the enhanced comprehensive tape with his video expert. Then TJ completed the story, which ended with Officer Shermer going down, and William losing consciousness. Then the video was played. From Brent’s perspective, it couldn’t be played enough.
It all seemed to go very well: that is, until Taylor began his annihilation on cross. Confidently, he rose and approached the witness box.
“Mr. Jones, do you remember the baseball game that night?”
TJ’s mouth opened in confusion. He hesitated.
“Well, yes, of course.”
“What was the score?”
“Final score?”
“Yes, the final score.”
“3-2 Dodgers over the Cardinals.”
“Do you remember the section of the parking lot you parked in?”
“No.”
“How about the route you took home?”
“We took the 101.”
“You remember taking the 101?”
“Yes.”
“Where did you get on the 101?”
“I don’t know.”
“You don’t remember?”
“No, I don’t.”
“What was the moon like that night?”
“I don’t know. It was bright.”
“Bright, like a full moon?”
“Yes, I think so.”
“Would it surprise you that there was a new moon that night?”
“Yes. I could see fine.”
“You know what a new moon is, don’t you?”
“Yes, it’s when the moon’s a tiny sliver.”
“Was the street well lit?”
“Yes, it was.”
“Yet, parts of your videos were unintelligible because of lack of light, isn’t that correct?”
“Yes, but…”
“Move to strike ‘but,’ Your Honor.”
“Granted.”
“You weren’t aware that there was a burnt-out street lamp to the east, about 10 yards, were you?”
“No.”
“Do you know what your blood alcohol level was that night?”
“The police told me, yes
.”
“You’ve been that drunk before, haven’t you, Mr. Jones?”
“Yes, I have.”
“And you’ve had occasion to wake up the next day after drinking and lose memory, haven’t you?”
“What do you mean?”
“I mean, you’ve woken up with a hangover the day after drinking and realized that you had lost whole hours or minutes of time; isn’t that correct?”
“Well yes, but not this time.”
“Move to strike everything after ‘yes,’ Your Honor.”
“Granted: the jury will disregard everything after ‘yes.’”
“You were booked into the Twin Towers that night, weren’t you, Mr. Jones?”
“Yes.”
“And, before you were taken to jail, you gave Detective Salerno a statement: isn’t that correct?”
“Yes, I did.”
“Quoting from your statement, People’s Exhibit number 12, Question: ‘How far were you away from the suspect and Officer Albright?’ Answer: I’m not sure.’ Do you remember saying that?”
“No. I knew how far away we were.”
“Move to strike after ‘no,’ Your Honor.”
“Granted.”
“Detective Salerno also interviewed you in the jail the next day, didn’t he?”
“Yes, he did.”
“Isn’t it true that you asked him how long you had been there?”
“I don’t remember asking him that.”
“You lost a chunk of memory that night, didn’t you, Mr. Jones?”
“Yes, but not until after the shooting.”
Brent knew what the impact of cross-examination would be on TJ’s testimony, so he resisted putting his hand to his forehead and looked straight ahead confidently, but that didn’t stop the instant headache that had crept up on him during cross. William looked like a stranded shipwreck victim. The jury’s faces were a collection of scowls. This testimony had not gone over well with them, especially the two teetotalers and the one recovering alcoholic, whom Brent would have kicked off the jury had he not run out of challenges. Impairment of memory is pretty common in cases of inebriation. The drinkers and recovering alcoholics on the jury knew it full well, as did the abstainers.
CHAPTER THIRTY NINE