Dying Declaration
Page 15
“Good morning, Isabell. Want some coffee?”
“No thanks. Already had my one cup. What have we got this morning?”
For the next half hour the Barracuda explained her case, her suspicions, and her strategies. They would be interviewing the Hammond children today. Based on the interviews, Judge Silverman would soon decide whether to allow these kids to stay with their mother pending trial. It would, of course, be disastrous if that happened. The mom would undoubtedly try to sway their trial testimony, and the kids would be in danger of further abuse. It would be Byrd’s job, Crawford explained, to write an independent report after she watched the interviews to explain why the kids should not be allowed to live with their mom pending trial.
Not surprisingly, the Barracuda had some ideas that might be helpful. She had dealt with a few of these religious fundamentalists in the past. She had been studying up on her Bible stories and had an idea that might at least get the little boy talking. Dr. Byrd would have to watch closely during this process for the telltale, sometimes hidden psychological signs of abuse. Dr. Byrd nodded grimly in agreement.
The Barracuda couldn’t disguise the fact that she was brimming with anticipation and intensity. This was no ordinary case. She was counting on Dr. Byrd. “You’re the best in the business at detecting abuse, Isabell. Even if kids can hide it from the other docs, they can’t hide it from you.”
Dr. Byrd assured Crawford she was up to the task.
And then she decided she might have another cup of coffee after all.
Round two of Tiger versus the Mean Lady got off to a rough start. It commenced with a shouting match between Miss Nikki and the Mean Lady about whether Miss Nikki should be allowed to sit through the interview. Tiger was traumatized by all the yelling and more determined than ever to defend his mommy and daddy.
“I’m the special advocate for these kids, and I’m entitled to be part of these interviews!” Miss Nikki insisted. She was about two inches away from the Mean Lady’s face and yelling at nearly full volume.
“This interview will form part of the report from the Department of Child Protective Services,” the Mean Lady responded. She was not hollering quite as loud, but she was definitely holding her ground. “The department mandated that Dr. Byrd and I do the interview. Not you. We’ve got our procedures—”
“Let me tell you what you can do with your procedures,” Miss Nikki huffed.
“Look here, lady.” Now the Mean Lady was poking a finger at Miss Nikki. Muscles were tensed, jaws jutting straight out. “If you don’t want me to call the sheriff and have you thrown out, I suggest you take a seat . . . outside the conference room.”
The women stood there, toe-to-toe, neither backing down. Tiger looked up at them, wide-eyed, his mouth gaping open.
There could be a fight, he thought, and I bet Miss Nikki can take her.
But much to Tiger’s great disappointment, there would be no fight.
“You disgust me,” Miss Nikki said. “You and your power trips.” Then she snorted at the Mean Lady and knelt down next to Tiger and Stinky.
“You guys go on in there and answer any questions this lady might ask,” Miss Nikki told them. “She won’t hurt you. She’s just got a few questions about your mom and dad.”
“I’d like to talk to the little boy first,” the Mean Lady said.
Figures, Tiger thought.
“Okay, Tiger,” Miss Nikki said, still kneeling so she could look him in the eye. “You go ahead and take your turn first. Tell the truth. And don’t worry, she’s not that bad.”
Yeah, right.
“Yes, ma’am,” he said.
After proper introductions, Tiger climbed into a big cushy seat at a long table with a glass top. There were three other people in the room, all adults. There was the Mean Lady, a smaller lady who looked like somebody’s grandma—she said her name was Dr. Byrd—and then some strange man operating a video camera.
Tiger decided to show right off the bat that he wasn’t scared. So he propped both elbows on the table, then plopped his chin in both hands. I’m bored, he was telling the adults. But if the truth were known, he was a little excited about being on camera.
The Mean Lady spoke first.
“We’re just going to ask you a few questions about your mom and dad and Joshua,” she said softly. “You just answer them the best you can. Okay?”
Tiger nodded his head, keeping it in his hands. Joe Cool.
“Before we start,” the Mean Lady continued, “do you have any questions for me?”
Tiger always had a few questions.
“Is that thing on?” he asked, pointing to the camera.
“Not yet,” the Mean Lady said. “After we get done practicing a few questions, then we’ll turn it on so the camera can record everything you say. Because what you say is very important.”
“Why is your hair two different colors?” Tiger asked. He assumed it was still open season for questions.
“We’ll talk about that later,” the Mean Lady said, her face darkening. “But first, let me ask you a few questions.”
“Okay,” Tiger said, shrugging.
“Your mommy and daddy, they’re very religious. Aren’t they, Tiger?”
Tiger scrunched up his face, thinking hard.
“I mean they’re very strong Christians. Aren’t they, Tiger? They have a lot of faith in God?”
“Oh yes, ma’am.”
“Have you ever heard the story about Abraham and Isaac, Tiger?”
“Yes, ma’am. My daddy tells it to me.”
“Did you know that Abraham had so much faith in God that Abraham was willing to sacrifice, or kill, his own son, Isaac, if that was what God wanted?”
“Yes, ma’am. But he didn’t have to. God sent a goat instead.”
“That’s right.” The Mean Lady smiled. “But Abraham was willing to do what God told him, even if it meant that his son might die. And it took several days of walking up the mountain, thinking that Isaac was going to die, before God sent the goat. Does that make sense?”
Tiger nodded.
“Just like for your mom and dad, they knew that according to what the church said, they were not supposed to take Joshie to a doctor. Is that right?”
“I guess so,” Tiger said.
“And it would take a lot of faith if Joshie was really sick for your parents to stick by what they believe, just like Abraham did, and not take Joshie to the hospital for three or four days, even if it meant that Joshie might die. In fact, I’ll bet your parents waited three or four days, just like Abraham waited three or four days. Didn’t they, buddy?”
Tiger squirmed. He really couldn’t remember. But he knew his daddy loved Abraham. And he was sure his own daddy wouldn’t be outdone by a Bible character, even if it was a Bible hero like Abraham.
“I think it was five,” Tiger said.
“Wow, your parents really are strong Christians,” the Mean Lady said, looking pleased. “I think we’re ready to start the camera now. John Paul, you’re really doing good.”
The red light on the camera came on. Tiger sat up straight in his seat, put on his best serious face, and started answering every one of the Mean Lady’s serious questions.
In the first ten minutes, Tiger painted a heroic picture of his parents and their unshakable faith, describing how they refused to take little Joshie to the “hopsicle” for five days, even though everyone knew he was dying. After racking his little brain, Tiger was quite sure that he could even remember his dad once saying that if Abraham could do it, he could do it too. With each answer, Tiger would talk a little faster and longer, making sure he occasionally smiled at the camera for all those folks out there in television land.
Eventually the Mean Lady moved off the issue of Joshie’s death and started asking some other strange questions.
“Do you ever have any nightmares?” she asked.
“Sometimes,” Tiger admitted. “But when I do, my daddy comes in and lays down wif me.”
“Did you say your daddy would lie down in bed with you?” the gray-haired lady asked.
“Yes, ma’am,” Tiger said proudly, happy to brag on his daddy. “All the time.”
“What would he be wearing, and what would you be wearing?”
That seemed like a really strange question to Tiger. And it also seemed like none of her business. But he decided to play along—after he gave her a dirty look.
“I was wearing my jammies; he was wearing his underwear.”
This appeared to make the gray-haired lady even more concerned. She wrinkled her brow and shook her head slowly.
“I know this may be hard to talk about,” she said very softly, like she was telling a big secret, “but did he ever take his underwear off?”
“Not in my bed,” Tiger said, insulted.
The concern did not disappear from the troubled face of the gray-haired lady. One question led to another, and before long Tiger was hopelessly confused.
Then, to Tiger’s way of thinking, an incredibly strange thing happened. The gray-haired lady wanted to play dolls! She pulled five dolls out of her little bag—funny-looking dolls with no clothes on, with their private parts showing. The lady suggested that each doll could represent a family member, one for Daddy, one for Mommy, one for Tiger, one for Stinky, and one for Joshie. Then she said that Tiger could show her what happened in their family by playing with the dolls.
Not in a gazillion years, Tiger thought. He folded his arms across his chest. He was done smiling for the camera. This is stupid!
“I don’t play with dolls,” he said firmly.
But the ladies insisted over and over, and it didn’t look like he would ever get out of that room if he didn’t humor them.
Finally, he picked up one of the dolls.
“That’s it, honey,” the gray-haired lady crooned. “You just picked up Tiger. What is Tiger thinking?”
“That he would like to put his clothes back on,” Tiger said, without smiling.
“I see,” the lady said.
Then it occurred to Tiger—a way out. He could pretend they were not dolls but Power Rangers. He could show these women a thing or two about playing. He would ignore the fact that the dolls didn’t have any clothes on and pretend they were fully clothed Power Rangers, armed to the teeth and ready for combat.
It was time to cut loose. It was time for war.
“Bam,” Tiger said. “This guy smashes this one.”
26
TO SHAKE OFF VISIONS of his wife, Charles Arnold immersed himself in legal research. But he didn’t like what he was finding. He had been researching for three straight hours, and his eyes kept coming back to the same case: Whren v. United States, decided in 1996 by the Supreme Court. The majority opinion was written by none other than Justice Antonin Scalia, no friend of criminal defendants. TheWhren case would not make it easy to punch Buster Jackson’s get-out-of-jail-free card.
There were copies of court cases and law review articles scattered all over Charles’s desk in his small office at the law school. They joined two empty soda cans, a cold half cup of coffee, and a fat constitutional law textbook opened and highlighted. On one wall hung framed certificates and diplomas, on the other a Nerf basketball hoop. Charles hadn’t taken a shot in half an hour. The case staring at him from his computer monitor had drained his enthusiasm. He had a feeling that he would be hearing a lot about Whren v. United States at Buster’s suppression hearing.
It seems that poor Mr. Whren had been driving in a “high drug area” of the District of Columbia in a Pathfinder truck with tinted windows and a temporary license plate. Whren was sitting at a stop sign for about twenty seconds when a police car, passing from the other direction, did a U-turn and pulled up behind him. That caused Whren, who was obviously not the sharpest tool in the shed, to gun the engine, turn suddenly to the right, and take off at an “unreasonable” speed.
The police officer pulled Whren over at the next traffic light and approached his car. As he did so, he noticed two large plastic bags of crack cocaine in plain sight in Whren’s greedy little paw. Whren was arrested and “large quantities of illegal drugs” were seized.
Whren’s clever defense attorney claimed that the stop and arrest violated the Fourth Amendment guarantee against unreasonable search and seizure because the stop was motivated by racial profiling as opposed to any real traffic violations. Besides, the lawyer said, the use of automobiles was so heavily regulated that it was “nearly impossible” to comply with all motor-vehicle laws, thereby creating unlimited opportunities for the police to use traffic violations as nothing more than a pretext for stopping black males just because they were black.
Justice Scalia was having none of it. The great defender of law and order grudgingly conceded that the Constitution prohibited “selective enforcement of the law based on considerations such as race.” That’s big of you, Charles thought. But then Scalia promptly gutted that principle by declaring that a decision to stop a vehicle is justifiable when the police have reasonable cause to believe a traffic violation has occurred or reasonable suspicion to believe that some other crime has occurred. Most important, Scalia rejected the notion that the actual motives of the police officers themselves made any difference. “We flatly dismiss the idea that an ulterior motive might serve to strip the agents of their legal justification for making such a stop,” he wrote.
In other words, even if Buster had been pulled over by Mark Fuhrman or by Hitler himself, if they had a reasonable suspicion for stopping Buster, it would not matter one iota how racist their motives were. Charles’s work was thus cut out for him. He would have to demonstrate that there was no reasonable suspicion that Buster had committed a crime. He would have to prove that Buster’s only offense was that he happened to be a black man cruising in a Cadillac Escalade SUV with tinted windows in a predominantly white area of Virginia Beach. Sure, Buster had given some young punks a brief ride around the block. Some young black punks. But that was no traffic offense, and that didn’t make him a drug runner.
If what Buster said was true—and that was a big if—this was racial profiling, pure and simple. Buster had done one thing, and one thing only, that had resulted in his arrest. It was an action that could not constitutionally justify an arrest, because it was an action that Buster really couldn’t do anything about. It was not the tinted windows. It was not the nice car he was driving. It was not even the fact that he had given a few kids a ride around the block. It was certainly not a traffic violation, for Buster had been driving like a nun. Buster had been pulled over, searched, and eventually busted for one reason and one reason only. Buster had been driving while black.
Easy to say, but because of Scalia’s Supreme Court opinion, it would be nearly impossible to prove. How could Charles show that the police had unfairly stopped Buster while white motorists with tinted windows were free to cruise to their heart’s content? How could he show that if Buster had been white, he would have been able to pick up a couple of kids and give them a ride around the block without harassment? In other cases, judges talked about statistical proof. But it was hollow talk, because police officers didn’t keep records of who they stopped or who they didn’t stop based on race. They only kept records of who they charged. Thanks to the Whren case, proving racial profiling by statistics would be incredibly difficult and maybe impossible.
And even if he could prove it, did he really want to? A pang of guilt hit him, then another. He felt guilty for representing Buster, for trying to spring a man who was guilty as charged and ought to be spending the next decade making license plates. Then he felt guilty for feeling guilty. Defense lawyers don’t think that way, he told himself. He couldn’t think that way. He was not the judge; he was Buster’s advocate. It was his job to make sure the state could prove its case and could do so without violating the Constitution. Still,
the guilt lingered, getting a man like Buster off . . .
Then another thought hit him. Right there between pages 65 and 66 of Scalia’s opinion, which he was now reading for the fifth time. It was the thought of a defense lawyer, something Johnnie Cochran himself would have been proud of. He could turn this into a class project. He could set up his own experiment. Atlantic Avenue could be his laboratory; his students could be the guinea pigs. He could test whether Buster had been pulled because of his race and whether Anglos would be pulled for doing the same thing. And he would do it without ever once trying to get into the motives of the individual officers involved.
He would create his own statistics. If this was racial profiling, if Buster had been pulled for simply driving while black, Charles would get to the bottom of it. Charles would prove it. He had just figured out how.
And not even Scalia could stand in his way.
27
THE VIRGINIA BEACH CITY JAIL brought back lots of memories for Charles Arnold—all of them bad. The slamming of the heavy metal doors, the smell of body odor, the dour looks of the guards, the absence of sunlight, and the pervasive dingy yellow haze of the fluorescent lights as he went deeper into the bowels of the place. It all came rushing back, reminding him of why he never wanted to return.
They escorted him past the cells, ignoring the catcalls of the men who had nowhere to go and nobody to see on another Saturday night. They took him to a small rectangular room with block walls, no windows, and a few dozen plastic chairs. About half the chairs were already occupied by slumping prisoners with surly looks—men who were sending every signal that they would rather be somewhere else, anywhere else, than in a Bible study in a jail on a Saturday night.
Charles did a quick visual survey of the room. All blacks with the exception of one burly white man, middle-aged, clutching a well-worn Bible in his large paw. Charles recognized him from court. It was the guy whose son had died for lack of medical treatment. None of the other men had Bibles or anything to write with or on. There was no chatter going on when Charles entered the room, just a show-me attitude as all eyes turned toward him. His buddy Buster stood in the back, leaning against the wall with his arms folded, as if he were guarding this brooding bunch against defectors.