Larry Frederick and Cathy Prieto-Smith were bent over law books and legal memos at the counsel table closest to the empty jury box. The assistant district attorneys scrupulously avoided looking at Amanda when she took her seat next to Tom Beatty at the other counsel table.
As soon as all the parties were present, the bailiff rapped his gavel and the judge took the bench.
“This is the time set for motions in State of Oregon v. Thomas Darrel Beatty,” Judge Chang told the parties. “Are you ready to proceed?”
Larry Frederick stood up. Amanda noted that the prosecutor looked much better than he had at the arraignment.
“The state is ready, Your Honor,” Frederick said. The forceful way he answered the judge’s question let Amanda know that his desire to put her client on death row had not lessened.
“Amanda Jaffe for Mr. Beatty. We’re ready to proceed.”
“Miss Jaffe,” Judge Chang said, “I received a raft of motions from you. The bulk of them are legal challenges to Oregon’s death penalty statute. I assume you’re filing these motions to make a record on appeal because I’ve denied similar motions in other cases, one of which your father handled, and I am not inclined to change my mind about the merits of your arguments. Is there anything you want to add about the constitutional challenges?”
“No, Your Honor. Several of these issues have not been decided by the Oregon or United States Supreme Courts and I’ll take them up there if necessary.”
“Very well. Now, you’ve filed a motion for bail. What is your position, Mr. Frederick?”
“We oppose bail, Your Honor, and I’m prepared to put on witnesses who will show how strong our case is.”
“Very well. Call your first witness.”
“I’ve talked with Miss Jaffe and we’ve agreed that I can show the court a photograph of the victim and summarize the autopsy report in lieu of calling Dr. Sally Grace, the medical examiner.”
“Is that correct, Miss Jaffe?” the judge asked.
“It is.”
The prosecutor pressed some keys on his laptop and several spectators gasped when a horrific picture of Christine Larson’s face was projected onto a screen next to the jury box. Both of Christine’s blackened eyes were swollen shut, her nose was broken, there were lacerations on her face, the skin on her ears and lips were split, and her upper and lower jaws were broken. Larry Frederick gave the judge a summary of the damage Christine had suffered and concluded by telling the judge that the cause of death was blunt-force head trauma.
After the cause of death was established, Frederick called Greg Nowicki. The detective was dressed in a suit and tie and would have looked like a corporate attorney if the tattooed talon of an eagle hadn’t peeked out of his collar at the back of his neck. After he was sworn, Nowicki told the court about the execution of the search warrant and the discoveries of the victim in Tom Beatty’s bedroom and of heroin in his home.
“Are you going to present evidence on the bail question?” the judge asked Amanda.
Amanda had debated calling Dr. Fisher to explain her client’s war service and his PTSD, plus some of the people who worked with Tom. After much thought, she had concluded that these witnesses were best saved for the sentencing phase if Tom was convicted.
“No, Your Honor,” Amanda said.
“I’ll wait to rule on the question of bail until I’ve heard all of Miss Jaffe’s motions,” Judge Chang said. “Let’s hear Miss Jaffe’s motion to suppress the evidence found during the search of Mr. Beatty’s house. Do you have witnesses you intend to call, Miss Jaffe?”
“Yes. I also have something I want to put on the record. My investigator has tried to find Carol White, the affiant who provided the information which led to the issuance of the warrant. I wanted her present at this motion, but we’ve had no luck finding her. I told Mr. Frederick about our problem but he has not produced her.”
“Mr. Frederick?” the judge asked.
“Miss White is a drug addict, Your Honor. Detective Nowicki went to her apartment but she wasn’t in. I’ve had officers looking for her since I received Miss Jaffe’s request but they haven’t been any more successful than Miss Jaffe’s investigator. If we find her, I’ll notify Miss Jaffe immediately.”
“It appears that Mr. Frederick is acting in good faith,” the judge said. “Can you proceed with your motion without this witness?”
“Yes, but I’d like a chance to reopen the motion at a later date if Miss White is located and I feel it’s necessary to complete my record.”
“That seems reasonable. Any objection, Mr. Frederick?”
“No, Your Honor.”
“Then let’s proceed. The search was executed pursuant to a warrant, so you have the burden of proof, Miss Jaffe. Who is your first witness?”
“Mr. Beatty calls Greg Nowicki.”
Once he took the oath and was seated, Amanda began. “Detective Nowicki, you’ve told the court that you executed a search warrant at Mr. Beatty’s house, but I’d like to go into a little more detail. How did you learn that Mr. Beatty was supposed to have drugs in his home?”
“Over the years, I have developed a relationship with several individuals who supply information to me about the narcotics trade. Carol White is one of my informants. She gave me the information I placed in the affidavit.”
“How long has Miss White acted as an informant?”
“Let me see. I believe I arrested her for the first time nine or ten years ago, and she’s supplied me with information off and on since then.”
“When does she do this?”
“Usually after she’s been busted and needs a favor.”
“And she’d been arrested recently?” Amanda asked.
“Yes, for possession, but she was out on bail.”
“Did you contact Miss White about Mr. Beatty or did she come to you?”
“She called the station and told me she had read about Mr. Beatty’s arrest for assault and knew something about him I might find interesting. We arranged a meet.”
“And it was during this meeting that she gave you the information you set out in your affidavit?”
“Correct.”
“Miss White is a drug addict. Isn’t it true that drug addicts are untrustworthy?”
“Some are and some aren’t. In my experience, Miss White has been truthful in her dealings with me.”
“So you took her word for what she told you?”
“Yes.”
“Did you check her story?”
“As much as I was able.”
“Miss White said that another junkie told her that Mr. Beatty was a dealer?”
“Yes.”
“Did you talk to this junkie to see if that was true?”
“No.”
“Why not?”
“I did ask for a name but Miss White could only remember his first name—Frank—and her description was fairly general. She didn’t know how to contact Frank.”
“Have you had any other person in law enforcement or any other informer tell you that Mr. Beatty was dealing heroin?”
“No.”
“So the only evidence you had that Mr. Beatty was dealing drugs was the word of a drug addict who was desperate to work off a beef?”
“Miss White described Mr. Beatty’s house accurately. The fact that she could tell me where he lived was important, because the house is not near the area where she says she bought from him on most occasions and it’s not in an area frequented by drug addicts.”
“Did you try to see if you could find any witnesses who could back up Miss White’s claim that she bought drugs from Mr. Beatty?”
“No.”
Amanda paused to consult her notes. “Did Alan Hotchkiss accompany you when you executed the warrant at Mr. Beatty’s home?”
“Yes.”
“Did he ride in your car with you?”
“Yes.”
“Did Detective Hotchkiss read the warrant and the affidavit?”
“Yes.”
“In the car on the way to Mr. Beatty’s residence.”
“So after the warrant was issued but before the search?”
“Yes.”
“Did Detective Hotchkiss make any comment about the affidavit before you entered the house?”
Nowicki started to answer. Then he paused and frowned. “I . . . I don’t think so.”
“What made you pause?”
“He never said anything when we were driving and I was trying to remember if he said anything after that. If he did, I probably didn’t pay attention because we were preparing to enter the house. Detective Hotchkiss told me that Mr. Beatty is an ex-soldier with a lot of combat experience. I was concentrating exclusively on how to enter in the least dangerous manner and I was preoccupied with keeping everyone safe.”
“So it’s possible Detective Hotchkiss made some comment about the facts in the affidavit after the two of you left your car?”
“Like I said, if he did I don’t recall the comment.”
“Nothing further,” Amanda said.
“Mr. Frederick?” Judge Chang said.
“No questions.”
For the next half hour, Amanda questioned the SWAT team members who were at the front of the house when entry was made. She posed general questions about the search, seeding in the questions she really wanted an answer to in a disinterested tone. Amanda struck out with the first four witnesses before striking pay dirt when Harold Fernandez took the stand. After several general questions about Fernandez’s training and years on the force, Amanda led the officer into the area in which she was really interested.
“Where were you in relation to Detectives Nowicki and Hotchkiss prior to entering Mr. Beatty’s house, Officer Fernandez?”
“We were on the front porch. Detective Nowicki was pressed against the wall next to the left side of the door if you were facing the door. I was in the same position but on the right side of the door and Detective Hotchkiss was next to me.”
“So you were between the two detectives?”
“Yes.”
“If Detective Hotchkiss wanted to say something to Detective Nowicki he would have to talk past you?”
“Yes.”
“Please tell the judge what Detective Hotchkiss said to Detective Nowicki and what Detective Nowicki said to Detective Hotchkiss just before entry was made,” Amanda said. Then she held her breath.
“We were getting ready to go in when Detective Hotchkiss said something about there being a problem with the affidavit for the search warrant, something about one of the dates.”
“Was he specific about which date?”
“No.”
“And what did Detective Nowicki say to Detective Hotchkiss?”
“He said, ‘Not now,’ because we were ready to go in.”
“Was there any more conversation about the affidavit?”
“No. Detective Nowicki knocked and we entered and that was that.”
“My next witness will be Detective Alan Hotchkiss, Your Honor.”
Moments later, the detective entered the courtroom, took the oath, and sat in the witness box. Amanda threw Hotchkiss a series of softballs before easing into the meat of her examination.
“This is not the first time you’ve been involved in a case in which Mr. Beatty was a defendant, is it?”
“No.”
“Just a short time ago, Mr. Beatty was arrested because of a fight in the Lookout tavern, was he not?”
“Yes.”
“Isn’t it true that you had more than a casual interest in that case?”
“I investigated it.”
“Do you remember a meeting in the office of Mr. Frederick at which he, you, and I were present?”
“Yes.”
“I asked for a dismissal of the case because I believed that Mr. Beatty had acted in self-defense, did I not?”
“Yes.”
“You vehemently opposed dismissing the case, didn’t you?”
“I felt that your client had gone too far and used too much force.”
“When I pointed out that Mr. Beatty was a decorated soldier who had defended our country in combat, did you ask Mr. Frederick if he was buying ‘this John Wayne crap’?”
“I may have said that.”
“So you had strong feelings about dismissing the case?”
“Yes.”
“This assault case was fairly recent, wasn’t it?”
“Yes.”
“Would it be fair to say that the case is fresh in your mind?”
“I guess.”
“And you had even fresher recollections about it on the evening of the search because the events were even closer to that date than they are to this day?”
“I guess.”
“Detective Nowicki testified that you read the search warrant and the affidavit in support of it on the way to Mr. Beatty’s house. Is that correct?”
“Yes.”
“Did you notice anything odd in the affidavit?”
“Odd?”
“Was there anything in the affidavit that concerned you?”
“I’m not sure what you mean,” Hotchkiss said, but it was obvious that he was stalling and the judge took a hard look at him.
“May I approach the witness, Your Honor?”
“Yes, Miss Jaffe.”
Amanda walked to the witness box holding several documents.
“I’m handing the witness defense exhibit 4, a police report concerning the fight at the Lookout tavern. What was the date that the fight occurred, Detective Hotchkiss?”
“June sixth.”
“And you knew that because you were heavily involved in investigating the case?”
Hotchkiss didn’t answer.
“Well, Detective?”
“I did know the date of the fight.”
“Mr. Beatty arrived at the tavern on June sixth around five p.m. and was arrested there and transported to jail, where he spent the night?”
“Yes.”
“I’m handing Detective Hotchkiss defense exhibit seven, a copy of the affidavit in support of the search warrant that was issued for Mr. Beatty’s house,” Amanda said. “Please read it, Detective.”
Amanda waited until Hotchkiss was through.
“In the affidavit, what dates and at what times does Carol White claim she bought heroin from Mr. Beatty.”
Hotchkiss stared at the affidavit. When he answered, there was a slight tremor in his voice.
“She said that she bought heroin from Mr. Beatty after dark on the evenings of May ninth, May seventeenth, June sixth, and July fifth.”
“Is it dark in early June at five p.m.?”
“No.”
“You knew that Mr. Beatty arrived at the Lookout tavern around five p.m. on June sixth, did you not?”
“Yes.”
“And he was in the tavern or in jail after five p.m. on the evening of June sixth, wasn’t he?”
“Yes,” Hotchkiss answered grudgingly.
“When you were standing on Mr. Beatty’s front porch just before the police entered his home, Officer Harold Fernandez was standing between you and Detective Nowicki, was he not?”
“Yes.”
“Officer Fernandez testified under oath that you told the detective that there was something wrong with a date in the affidavit. What did you mean by that?”
Hotchkiss cast a quick look at Larry Frederick.
“The district attorney can’t help you, Detective,” Amanda said.
Judge Chang leaned forward and gazed at the witness intently.
“When you saw Carol White’s claim that she had purchased heroin from Mr. Beatty after dark on the evening of June sixth, you knew that could not be true, didn’t you?” Amanda said.
“I . . . I did have some concerns.”
“Were you sufficiently concerned to tell Detective Nowicki, as Officer Fernandez testified, that there was a problem with a date in the affidavit?”
“I
. . .” Hotchkiss looked grim. “Yes.”
“And this information was known to you after the warrant was issued and before entry was made?”
“Yes.”
“No further questions.”
Judge Chang looked concerned. “Any cross, Mr. Frederick?”
The prosecutor looked upset. “May I have a brief recess, Your Honor. This line of questioning has come as a surprise.”
“I’d object to any recess,” Amanda said.
“This is very disturbing, Mr. Frederick,” Judge Chang said.
“I don’t see how it has any bearing on the validity of the search,” Frederick said, but it was obvious that he was flailing around.
“To the contrary,” Amanda answered. “This is a clear case for a shadow challenge.”
Judge Chang’s brow furrowed. “I’m not familiar with that term, Miss Jaffe.”
“That’s probably because an opportunity for this type of challenge to a search rarely presents itself. The term comes from a poem by T. S. Eliot. ‘Between the idea and the reality, between the motion and the act, falls the shadow.’
“Let’s assume that the police get a search warrant that’s completely bulletproof; there’s clear probable cause stated in the affidavit. Then between obtaining the warrant and executing it the police learn something that undermines probable cause. An easy example is a search warrant issued in a terrorism case during a Jewish holiday. In the affidavit in support of the warrant the police swear that the home owner is a Muslim. Then the police arrive at the house and see a mezuzah on the door and a menorah in the window. In a situation like that the police are obligated to go back to the judge with this new information so the judge can decide if probable cause still exists.”
“Do you have any case law in support of this theory?” the judge asked.
“I do. Close to home is the Washington case of State v. Reichenbach. The police obtained a warrant based on information that the defendant was going to buy drugs, but after the warrant was issued the police were told that the defendant had been unable to obtain the drugs. The warrant was executed anyway and the court held that the officer’s failure to inform the issuing magistrate of this new information rendered the warrant invalid at the time of its execution.
Violent Crimes Page 6