Dying Declaration

by Randy Singer

  Should I tell her about the belt? Or will I somehow get my dad in trouble? He looked at Miss Nikki, who smiled without opening her mouth. No help there. He looked at the fat little man in the room, the guy they called “Harry.” He had his head tilted sideways like he might be feeling sorry for Tiger. No help there either.

  “Sometimes his hand,” the clever little guy said.

  “And other times?”

  Tiger’s eyes darted around the room from adult to adult, searching for allies. Finding none, he stared back at the floor.

  “And other times?” the Mean Lady repeated, this time without sugar in her voice.

  How does she know about the belt? “Sometimes his belt,” Tiger admitted. “But it doesn’t hurt very bad,” he added quickly.

  “I’m sure it doesn’t,” the lady said, as she scribbled some more notes and frowned at her legal pad.

  12

  “YOU’VE BEEN SWORN IN, Officer Thrasher. Why don’t you just tell me what happened,” Judge Silverman suggested, resting his chin on his hand.

  It was nearly noon, and Thrasher had just taken the stand to testify against Charles. Judge Silverman had first required that Charles sign a document waiving his right to counsel, on the basis that Charles would act as his own lawyer.

  “You know what they say about lawyers who represent themselves?” Silverman asked.

  “That they’ve got a fool for a client,” Charles replied. “But at least in this case, he’s an innocent fool.”

  “We’ll see,” Silverman said.

  Charles felt his palms go moist as he sat at the defense counsel table, his right leg bouncing nervously up and down. Crawford and her entourage had returned to the courtroom and were waiting for the chance to resume the Hammonds’ hearing. Charles noticed Crawford squirming in her seat, signaling her anxiousness to return to center stage.

  First, Charles thought, I’ve got some fireworks of my own.

  He rose behind the defense counsel table just as Thrasher turned toward the judge to start his narration. “Before he does that, Your Honor, the defense would like to challenge the constitutionality of this statute.” His voice sounded louder than he had intended. It boomed through the courtroom and echoed back at him.

  All eyes turned to Charles. Silverman raised a bushy eyebrow.

  “You want to challenge the constitutionality of the Virginia Beach noise ordinance?” a skeptical Silverman asked. His chin still rested on his hand, and he added an eye roll at the request. It was getting late.

  “Yes, I do, Your Honor.” Charles was nervous, but he was also getting a little irked. It was the court’s job to consider legal challenges, even for misdemeanors. He saw no reason for the judge to act so put out by the notion.

  “On what basis?” the judge mumbled.

  “Excuse me, Your Honor?”

  “I said, on what basis?” This time Silverman took his chin out of his hand and spoke up. There was a slight edge to his voice.

  I thought you’d never ask.

  “The ordinance as written violates the free speech clause of the First Amendment, and as applied in this case, it violates the equal protection clause of the Fourteenth Amendment.” Charles pulled copies of cases out of his briefcase and dropped them on his counsel table. He noticed Judge Silverman eye the papers suspiciously.

  “The ordinance requires that anybody using amplification equipment on the streets, sidewalks, or parks must first obtain a permit,” Charles continued, unfazed by the whispers and snickers behind him. “There are no objective guidelines for when the permit should be issued, leaving it in the total discretion of the city manager’s office. This creates an unconstitutionally broad prior restraint on free speech.”

  Charles paused to let the concept sink in. Silverman obviously didn’t spend much time deciding constitutional issues, and Charles didn’t want to see the judge’s eyes glaze over. Better to lead him through it one step at a time, let him become part of the process.

  “You want me to declare the noise ordinance in Virginia Beach unconstitutional so that anybody can then use loudspeakers and amps anytime they want?” Silverman asked. He raised both eyebrows this time.

  “Only until the city rewrites the ordinance to include some objective standards for when to issue permits,” Charles responded. He wanted to say more, but instead he just picked up one of the cases he had placed on the table. From his years in judicial clerking, Charles knew that judges hated it when they thought a lawyer might know something they didn’t.

  “Do you have any authority to support this rather bold claim?” Silverman asked, mesmerized by the papers in Charles’s hand.

  Glad you asked.

  “Yes, Your Honor. Several years ago the U.S. Supreme Court considered a very similar case. In Kunz v. New York, 340 U.S. at page 290, the Court addressed a New York ordinance that prohibited public worship on the streets without first obtaining a permit from the police commissioner. This man Kunz, a Baptist preacher, applied for a permit and was denied one because he had supposedly ridiculed and denounced other religious beliefs in his meetings, which, by the way, I never do.

  “Anyway, the Court held that the statute was unconstitutional because—” and here Charles looked down at his highlighted pages, carefully reading the words and giving them greater emphasis—“it gives an administrative official discretionary power to control in advance the rights of citizens to speak on religious matters on the streets of New York.’”

  Charles looked up at Silverman in time to see the judge frown. “Let me see that case, Counselor.”

  Charles walked up to the judge and handed him the file. He noticed that Officer Thrasher no longer looked so smug. Charles smiled at the officer and headed back to his counsel table. He waited patiently as the judge read every word of Kunz v. New York.

  It was not her responsibility to prosecute misdemeanors, but the Barracuda couldn’t resist a good fight. Especially in front of the television cameras. The Hammond case was in the bag. The kids had given her everything she needed. She would nail down her bond request in a few minutes. But first, an unexpected chance to be a hero.

  She had no love for Thrasher. He probably deserved this. But it never hurt to have the cops owe you a favor or two. And the thought of impromptu street performers on every corner of the boardwalk—unrestrained by a noise ordinance—was a nightmare. It was already bad enough when the teen agers drove around blasting their car stereos and boom boxes. This would be worse.

  Who did this black man think he was anyway, waltzing into a Virginia Beach court—her court—and advocating chaos at the beach in the name of the Constitution? She had seen his sound equipment in the exhibit room. He might have a nifty little case from New York City, but this was Virginia Beach, and this guy was about to meet his match.

  She rose from her seat in the front row of the courtroom, on the side where the police officers hung out—on the side of the law.

  “Your Honor?” Crawford said.

  “Counsel.”

  “If it please the court, the commonwealth’s attorney would like to get involved in this matter, given the fact that the defendant is challenging an ordinance on constitutional grounds.”

  “By all means,” Silverman said, taking off his thick glasses and rubbing his eyes. “The more, the merrier.”

  Now it was getting complicated. A real lawyer on the other side. Charles loved a challenge, but not with his own criminal record at stake. He gave the deputy commonwealth’s attorney an irritated glance.

  “Do you have a copy of the case for Ms. Crawford?” the judge asked.

  “Sure—”

  “Don’t need one,” Crawford said, interrupting. “Your Honor has already read the case. And, as Mr.—” She pointed at Charles, apparently unable to recall his name. “As the defendant here has already said, the plaintiff in the Kunz case actually applied for a permit and was denied one. To my knowledge, this defendant—” and again she pointed at Charles, annoying him to no end—“never even
applied for a permit. How can he now challenge an ordinance as an unconstitutional prior restraint on his speech if he never even bothered to apply for a permit?”

  Thrasher smiled. Silverman nodded. All heads turned toward Charles.

  “Judge,” he began, palms spread, “the ordinance is unconstitutional on its face. It’s the procedure itself I’m complaining about. I shouldn’t be forced to use a flawed procedure in order to challenge it.”

  “Oh, come on,” Crawford said. “Since when do we let citizens just waltz in off the street and challenge the constitutionality of ordinances for sport when they never even try to comply with them? This court’s got better things to do. Criminals to try. Bonds to set—”

  “Okay, okay,” Silverman interrupted. “Here’s what we’re going to do. Courts don’t rule on the constitutionality of statutes except as a last resort. I don’t even know the facts of this case yet. Let me hear the testimony first; then if it’s necessary to rule on the constitutionality of the statute, I’ll do so at that time.”

  Silverman glanced at his watch and stifled a yawn. “Is that acceptable to everybody?”

  “Yes, Your Honor,” Crawford said.

  “Not exactly,” Charles said.

  Silverman sighed and ran his hands through his hair. “What do you mean, not exactly?”

  “Judge, I’ve also got a selective enforcement argument.” Charles talked quickly, trying to get it all in before he was cut off. “They singled me out. Everybody else gets to use sound equipment and make as much noise as they want. But even a constitutional statute, if it’s applied with—” Charles picked up another case and began reading, speaking even faster—“an evil eye and an unequal hand, so as to make unjust discrimination between persons in similar circumstances,’ then it cannot be enforced.” He put the paper down and looked up.

  “And I suppose you’ve got another case?” Silverman asked.

  “Yes, Your Honor. The Chinese laundry owner’s case, Yick Wo v. Hopkins, where the city of San Francisco would not give permits to Chinese applicants to operate laundries.”

  Crawford snorted so loud she sounded like a horse. “Of course,” she said sarcastically, “the old Chinese laundry case. This man is desperate, Judge. Last I knew, he had no desire to run a Chinese laundry. . . .”

  The cops all smiled.

  “I cite it for the proposition of law it contains,” Charles responded, turning and staring at the deputy commonwealth’s attorney. “Every lawyer knows that.”

  She walked to his table. “I wouldn’t want to miss reading this one,” she sniped as she snatched the copy from Charles’s hand.

  “Counsel, address any comments to the court, not each other,” Silverman demanded. “Mr. Arnold?”

  “Yes, Your Honor.”

  “We’ll deal with that case after we hear the evidence as well.”

  Charles nodded.

  “Now, if you don’t have any more cases in that bag of tricks of yours, let’s hear some evidence.”

  The Barracuda flipped the case on her counsel table and turned to Officer Thrasher. She and the officer had danced the witness dance before. She led. He followed. He had not always been so accommodating. After their first case together, she had dressed him down in front of his buddies in the hallway. A vicious shouting match that nobody won. But now he would follow her lead. Nothing fancy. He would just answer her questions.

  After all, it was only a noise ordinance. How bad could it get?

  After the preliminaries, she got right to the point.

  “Had you ever met the defendant before the night of his arrest, Officer Thrasher?” She walked the entire well of the courtroom as she questioned the witness, her head held high. She used no notes, relying instead on her instincts and her formidable memory.

  “No, ma’am.”

  “Would you have any reason whatsoever to discriminate against him, or selectively enforce a law against him?” Other than the color of his skin, she thought to herself. Thrasher was not one of the most enlightened officers at the beach.

  “Oh no, ma’am.”

  “And have you, in fact, enforced this very same ordinance against others?”

  “Many times.” Thrasher talked in short clips. No nonsense. Just the facts. He had learned his lesson well.

  The Barracuda walked back to her counsel table. Thrasher’s partner, a bodybuilder named Alex Stone, stood and whispered in her ear. He then headed down the aisle of the courtroom and stood by the back door.

  Crawford turned to the witness. “Please tell the court, briefly, about the arrest.”

  “At approximately 9:05 p.m., on Friday, June 3, my partner and I were patrolling the Virginia Beach oceanfront. We saw the suspect at the intersection of Atlantic and Virginia Beach Boulevard. He had set up an extensive sound system and could be heard at least a block away. He was verbally assaulting tourists and others walking down the sidewalk, trying to proselytize them as they walked by.”

  A sigh of disbelief floated up from the defendant—a sure sign she was scoring points.

  “So what did you do?” she asked simply, clinically.

  “We pulled over and asked him not to use the sound amplification equipment without a permit because it violated the Virginia Beach noise ordinance.”

  “What was his response?”

  “The suspect started . . . I guess you could say . . . ranting and raving at us. He accused us of discrimination. He ridiculed us and called us names—five-O . . . pigs—that type of thing. He threatened us with a lawsuit, said he was a law professor and knew his civil rights. He basically tried to get the whole crowd riled up against us.”

  “Was he using his sound equipment while he insulted you?”

  “The whole time.”

  Now for the fun part. The Barracuda turned and nodded to Officer Stone in the back of the courtroom.

  She turned back to the witness. “Did you impound the equipment for evidence, Officer Thrasher?”

  “Sure did.”

  As if on cue, Stone marched up front with the karaoke boom box and one of the speakers. He hooked up the first speaker and then brought in the second speaker and plugged it in as well. He plugged the boom box into an outlet and returned to his seat.

  “Is this the sound system the defendant was using?” Crawford couldn’t resist a small smirk. The speakers were huge.

  “Yes, ma’am. Except he had it hooked up to a car battery instead of plugging it into an outlet.”

  “Your Honor,” the Barracuda announced, unable to suppress a smile, “I’d like to introduce this whole contraption as Commonwealth’s Exhibit 1.”

  Silverman made a face. “The whole thing?”

  “The whole thing,” she said firmly.

  “Any objections?” Silverman turned to the defendant. The Barracuda watched the defendant’s face—what is that guy’s name anyway?—for signs of panic, but she saw none.

  “May I inspect it?” the defendant asked.

  “Knock yourself out,” the Barracuda said curtly. Then she leaned back against her counsel table and watched in bemusement as the lawyer carefully looked over every square inch of his equipment.

  “No objection,” he announced at last, “as long as I get it back when the case is over.”

  “All right, then,” Silverman said. “Let the record reflect that this sound system has been introduced as Commonwealth’s Exhibit 1.”

  “What volume level was it set on?” Crawford asked.

  “I believe it was on seven,” Thrasher responded. The Barracuda recognized the code language. An “I believe” answer meant that Thrasher had no idea.

  She walked over to the boom box and put the volume knob at seven. She handed the mike to Officer Thrasher.

  “Was the defendant talking or singing into the mike?” she asked.

  “He was talking,” Thrasher said.

  “Thank goodness,” the Barracuda said. “Otherwise, I would have had to ask you to sing.” She waited for the chuckles to subside. “
But if you wouldn’t mind, say a few words into that mike.”

  “Testing one . . . two . . . three. . . . Testing one . . . two . . . three . . . ,” Thrasher said. His voice boomed through the courtroom and echoed off the walls. The mike squealed, and a few folks grimaced at the noise.

  “That’s enough,” Silverman insisted. “The court gets the point.”

  Thrasher handed the mike back to Crawford. She turned off the machine and returned to counsel table.

  She was exceedingly proud of her little show. She had kept Thrasher and his big mouth out of trouble. Short and sweet. Just the facts. No way that he could be trapped on cross-examination now.

  The maximum fine for violating the noise ordinance was one thousand bucks. She would ask for the maximum and probably get half. She had teed it up beautifully. She hoped the young upstart lawyer at the defense table was taking notes. He would learn a good lesson. It would also be an expensive one.

  “No further questions,” the Barracuda said to Thrasher. “Please answer any questions that Mr. . . . um . . . the defendant . . . might have.”

  She sat down, turned, and mugged for her friends in press row.

  13

  HE STOOD FOR A LONG TIME behind his counsel table, looking down at his notes, as if in a trance.

  “Mr. Arnold,” the judge said, “it’s your turn.”

  “Oh . . . sorry, Your Honor.” He looked at the witness.

  “You sure you’re remembering this right?” Charles asked softly, his brow furrowed.

  “I’m sure,” Thrasher said coldly.

  “Isn’t it true that there were others on Atlantic Avenue on the night in question who were using sound systems every bit as loud as mine?”

  “That’s absolutely not true,” the witness swore.

  “Have you ever seen a hip-hop band out there . . . with a boom box, amps, and speakers bigger than mine?”

  “Never.”

  Charles smiled at the officer. Thrasher was good at this. Not the slightest hint of remorse.

  “Isn’t it true, Officer Thrasher, that I never called you and your partner ‘pigs’?”