by Kenneth Eade
“Brent, you’re home!”
“Yeah, how about that!”
Angela beamed and threw her arms around Brent. It was the best welcome home he had ever received. Even the cat seemed happy to see him, as she slinked around their legs.
“Sit down and relax,” said Angela as she led him by the hand to the couch, where he plopped down. She sat next to him and said, “Maybe we should go out and have a nice, relaxing dinner at your favorite place.”
Brent smiled. “This is my favorite place. Why don’t we just stay here?”
As Angela prepared dinner, Brent went through his trial notes and closing outline one last time. If he wasn’t ready now, he never would be.
* * *
Detective Henry Dumont sat in his unmarked Dodge Challenger on Van Nuys Boulevard, laying low and observing every one of the comings and goings on the street as he patiently waited. Dumont was proud of his job, which he thought was the most important one at the LAPD. At first he didn’t like his assignment to IAG. All his buddies had turned against him. He was no longer welcome anywhere.
It wasn’t obvious; just a feeling that he got whenever someone said hello (or didn’t). But during the past three years his eyes had been opened to the fact that not every person in service had done it for the same reasons, and the ones who had, had been tainted by what they had seen and what they had gone through. For Dumont it was very simple. There was no room for dishonesty on the police force.
He had been charting the comings and goings of 15-Robert-7 for the last several days and had noticed nothing unusual. But this night they had deviated from their pattern. This night they had been crawling around this neighborhood, taking in the neighborhood prostitutes, and Dumont had recorded it all on his night vision camcorder.
CHAPTER FORTY FIVE
“Do the People have any rebuttal?” asked the Judge.
“Yes, Your Honor.”
“Please proceed, Mr. Taylor.”
“The People call Dr. Lawrence Cartwright.”
Dr. Cartwright was a scientist, psychiatrist, and an attorney. He had received his PhD in behavioral psychology from UC Berkeley, an MD from Stanford School of Medicine, and a JD from Harvard Law School. He had testified as an expert in hundreds of cases relating to memory therapy, and was the author of the leading articles on false memory implantation.
“Doctor Cartwright, you are an outspoken critic of repressed memory therapy; are you not?”
“Yes, I am.”
“Can you explain to the jury why?”
“Of course.” Cartwright spoke directly to the jury, ignoring Taylor. The jury members were his pupils, and he was there to educate them.
“The human memory is malleable and responds to suggestion. It’s not like a file cabinet or hard disk on a computer, which files away every memory until it is recalled. Memories of events are almost always a combination of factual traces of sensory information mixed with emotions, with the blanks filled in by imagination. That is why you will hear so many different interpretations of the same event.”
“How does the fabrication of memories occur, doctor?”
“Remember what I said about the brain’s tendency to fill in the blanks with imagination? This is the reason why so-called “repressed memories” may not be memories at all, but fill-ins by the imagination during therapy; especially hypnotic therapy.”
Dr. Cartwright explained to the jury the famous “Lost in the Mall” experiment of Elizabeth Loftus, the memory expert who was known for her research on the subject of memory fabrication. In the experiment, subjects were given summaries of real childhood events written by family members, along with a fictitious account of being lost in a shopping mall. All the subjects recalled the shopping mall incident with great detail.
“This is why the American Psychological Association states that, without corroboration, it is not possible to distinguish recovered memories from those that have been fabricated.”
Taylor then posed a hypothetical question to the doctor in which he was asked to assume a man who had experienced great physical and emotional trauma and was unable to recall anything but bits and pieces of the event. The man underwent memory therapy for several weeks with no results, including hypnosis, eye movement desensitization and reprogramming, (called exposure therapy), then listened to witnesses’ testimony of the event in court and then experienced spontaneous total recall.
“Doctor, based on this hypothetical, are you able to reach an opinion to a degree of medical certainty about whether the “memory recovery” was false?”
“Yes. Under these circumstances, total spontaneous memory recovery is highly unlikely and should be suspect, absent corroborative evidence.”
“Thank you, doctor.”
“Cross-examination?”
“Thank you, Your Honor. Doctor, are you saying that spontaneous memory recovery is impossible?”
“No.”
“And would matching accounts by other eye-witnesses be considered corroborative evidence?”
“If they were reliable, they may.”
Brent chose not to continue cross-examination because, at this point, the doctor was not going to “crack.” He was more likely to repeat his testimony, which could then possibly find a permanent place in the psyches of the jurors.
There being no more rebuttal testimony, Judge Schwartz called a 15-minute recess.
“Counsel, be prepared for your closing statements when we return.”
* * *
The judge cautioned the jurors that what the attorneys had to say was not evidence, and they should not consider it as such. Benjamin Taylor strode to the podium, rested his notes on the surface of it, put his hands on its sides, and took a long, hard look at the jury, like they were an athletic team and he was the coach. This would be his pep talk before the big game.
“Ladies and gentlemen, I told you at the beginning of this trial that this was a very simple case. Now you can see that what I said was true. What is complicated is not the case, but the fact that we cannot exist as a society without laws, and we cannot have laws without the means for their enforcement.
“This means that, just as you all sit in judgment here, we must rely on our peace officers to make split-second judgments in the field of law enforcement. Sometimes these split-second judgments are, literally, a matter of life and death.
“So that our police can enforce the law and protect us from violent crime, they are entitled to use more force to protect lives and property than we are, as normal individuals and members of our society."
Taylor advised the jury that the judge would instruct them that it was not their job to examine Officer Albright’s conduct and the decisions he made through the glass of hindsight, to determine what he should or should not have done when he made the decisions that he made to ensure his safety and the safety of his partner. Every situation is different, and no two police officers facing the same potentially violent situation will react in exactly the same manner.
“Mr. Marks will tell you that, if you’re stopped by a police officer, you need not blindly do everything he says with a big smile on your face. However, you are not allowed to use force to resist an arrest, whether it is lawful or not, and that’s exactly what the defendant did."
Taylor looked at William over his shoulder, then back at the jury, and explained that William had been charged with murder in the second degree, with a special circumstance of murder of a police officer. The charge included a charge of manslaughter, in case second degree murder didn’t stick.
“To prove murder beyond a reasonable doubt, the People must prove three things: One, that the defendant caused the death of Officer David Shermer; Two, that he either intended to kill or that the natural and probable consequences of his actions were dangerous to human life and that he knew that; and Three, that the killing was without lawful excuse or justification. Ladies and gentlemen, I will demonstrate to you that the People have proven each of these elements beyond a reasonable doubt."
>
Taylor went to the chalkboard and wrote, The Defendant caused the death of Officer Shermer.
“First, the People have proven beyond a reasonable doubt that the defendant caused the death of Officer Shermer. Officer Albright testified that he had a dangerous situation on his hands after he contacted the defendant. First, the defendant resisted Officer Albright’s instructions. Next, when Officer Albright chose to display an appropriate degree of force so as to minimize the defendant’s risk to his safety and to the safety of Officer Shermer, the defendant forcefully grabbed the baton of Officer Albright, forcing him to use it on the defendant.
“Officer Albright is a respected and decorated officer who has no history of discipline. The only testimony against his character was given by a convicted felon who is also a street prostitute. As the judge will instruct, you may consider that in deciding whether to believe her testimony or not.
“On the other hand, Officer Albright’s testimony is corroborated by the physical evidence, as testified to by our expert witnesses. The defendant’s fingerprints were on the gun. The People’s expert testified that the gun had been tampered with. Even the defendant himself admits touching the officer’s gun.
“Detective Salerno testified that, given the limited amount of choices of force Officer Albright had when the use of bodily force did not work, it was reasonable to pull his gun.”
Taylor explained that the jury was not allowed to simply stack up the witnesses against each other and make a decision based on how many told the same story. They had to evaluate each witness’s credibility and make a decision as to whether to believe them and what weight to give to their testimony, if any.
“The defendant tells a very different story: a story upon which we cannot lend any credence because, up until the very point of his testimony, he remembered nothing past the point of his reluctance to perform the field sobriety tests. You cannot lend any credibility to his so-called spontaneous memory, as the only corroboration of it is by his two witnesses, who were both drunk at the time and admitted to alcohol-related memory lapses."
Taylor went over every witnesses’ testimony and all the physical evidence, methodically, making sure that the jury was with him. As he spoke of the physical evidence, he set each exhibit on the counsel table. Front and center on display was the murder weapon.
“So, as you see, the evidence very clearly points to only one inference, and that is that the defendant caused the death of Officer Shermer. And I will go one step further. You don’t even have to believe that the defendant actually shot the gun to hold that he caused Officer Shermer’s death. There is no question that the defendant tampered with Officer Albright’s gun, and this leads us to the second element of murder.”
Taylor returned to the chalkboard and wrote, The People have proven beyond a reasonable doubt that the defendant intended to kill or that he knew that the natural and probable consequences of tampering with the gun were dangerous to human life.
Taylor next explained the concept of transferred intent, which meant that if they found that William intended to kill Officer Albright, or acted in reckless disregard of the danger of his actions to human life, but by mistake or accident killed Officer Shermer, the crime was the same as if he had killed the intended person.
“You heard the defendant himself admit that one of them was going to die, and it wasn’t going to be the defendant."
Taylor picked up the gun from the counsel table, then walked back to the lectern, brandishing it like a movie prop.
“As Mr. Marks pointed out during the trial, a gun is used to inflict great bodily injury or death. The People don’t need to prove that the defendant had the intent to kill because, when he tampered with this gun, he knew that the natural and probable consequences of that act was dangerous to human life, and that was the equivalent of intent in the eyes of the law."
Using my words for your cause, thought Brent. Taylor was an extremely clever manipulator.
Taylor approached the board and wrote, There was no justification or excuse for the killing. He explained that William had no right under the law to forcefully resist Officer Albright in the performance of his duties during the traffic stop; and that is exactly what he did when he chose to push the officer’s baton, which put in motion a series of events that resulted in the death of David Shermer.
“The People have proven each and every element of second degree murder beyond a reasonable doubt and it is your duty to find the defendant, William Thomas…”
(Taylor turned slowly and pointed to William, the image of the grim reaper extending his bony finger.)
“…Guilty of second degree murder.”
“Ladies and Gentlemen, the life of a respected police officer, husband and father, has been needlessly snuffed out before his time. The evidence we have presented is clear and leads to only one reasonable and logical conclusion. The People have proven beyond a reasonable doubt that William Thomas is guilty of the murder of Officer Shermer, who was engaged, at the time of the murder, in the performance of his duties as a police officer. It is your duty to find him guilty and to find the special circumstance of murder of a peace officer. Thank you.”
Now, get out there and win one for the gipper!
CHAPTER FORTY SIX
Brent walked up to the podium and set down his outline. This was his one and only chance to put everything together for the jury, which meant that he had to take apart everything that Benjamin Taylor had told them. He looked confident and together, in the same navy blue suit he had worn for his opening, like he was delivering the evening news.
“Ladies and gentlemen of the jury, good morning. When I told you that I disagreed with Mr. Taylor, and that this was a complicated case, I was both right and wrong. It is a complicated case, because none of the evidence points to a single, clear-cut conclusion. It is a simple case because to understand why it happened, all you have to do is look at the defendant, Mr. William Thomas.”
Brent turned to look at William and then back at the jury. The jury seemed to Brent to be puzzled, but that is exactly what he wanted them to be.
“What went so wrong that night, the night that three guys returned home from a Dodger game, that caused the death of a police officer and the arrest of a respected lawyer? To understand that question, we need only to look at the color of William Thomas’s skin.”
“Objection, Your Honor,” barked Taylor. "Irrelevant and highly prejudicial.”
“Yes and no, Your Honor,” Brent barked back. “Irrelevant? Hardly, but highly prejudicial? Yes, indeed.”
“Overruled.”
“When Officer Albright stopped William Thomas that night, in his mind he saw two niggers engaged in possible criminal activity, which was urinating in the bushes, and another nigger whom he assumed had been driving. Does that word make you uncomfortable? Because, at one point in time, you have used it, or thought about using it?"
Brent searched the faces of the jury. They all appeared to be guilty of this societal misdemeanor. Every single one of them.
“What went wrong that night was something that went wrong in our society long ago that has never been corrected. Something that went wrong when a police officer assumes a black man is engaged in criminal activity for no other reason than he is a black man. Something that went wrong when a police officer assumed he could use deadly force on a black man during a drunk driving test just because he’s black.
“You may think your job comes down to deciding who is telling the truth: John Albright or William Thomas. If you can’t decide which version to believe, you must acquit William Thomas. But it goes far beyond that, ladies and gentlemen.
“Even if you believe John Albright and don’t believe William Thomas, his two passengers, and Miss D., this is still not enough. The People have the burden to prove every element of this case beyond a reasonable doubt, which means that your feelings about what really happened cannot even come into play. What you feel about this must be completely ignored, as you must analyze wh
ether the prosecution has proven every element of the case beyond a reasonable doubt. This, ladies and gentlemen, has not been done.
“First and foremost, Albright never saw William driving the car. He didn’t exhibit any signs of being under the influence of alcohol, and passed the finger to nose test perfectly. Secondly, he had the right to defend himself when Albright shoved him with the baton because Albright’s entire detention of William was illegal. Albright knew he wasn’t under the influence of alcohol, and Albright had no reason to use bodily force when William had already been obeying his verbal commands.
“Secondly, even the prosecution’s expert testified that it is impossible to determine from the fingerprints on the gun or the damage to the gun who actually fired it. And then you have two forensic experts. The People’s expert says that it was Mr. Thomas who fired the gun, and the defense expert says it was John Albright. But, ladies and gentlemen, it doesn’t matter who fired the gun.
“John Albright was the custodian of this gun. He is supposed to be the protector of the public, and only take it out when confronted with deadly force himself. The evidence clearly leads to only one conclusion, and that is that the death of Officer Shermer was caused by John Albright, his partner. The very act of pulling out his gun was an exercise of excessive, deadly force which resulted in Shermer's death. William was already incapacitated. Albright was sitting on his chest when he pulled his gun. William wasn’t going anywhere. He had no weapon with which to threaten Albright. There was no reason for Albright to draw his gun.
“This unreasonable use of deadly force put William’s life in jeopardy, to the point where he legally had the right to defend himself with deadly force, if necessary. So you see, it was the act of pulling the gun out which caused the death of Officer Shermer. It doesn’t matter whose finger was on the trigger because the gun should not have been pointed at William’s face in the first place!” Brent said forcefully, as he slammed his fist on the podium.