Dying Declaration

by Randy Singer

  “The brothers say the Moreno woman’s hot,” Buster continued. “Is ’at why you’re crawlin’ all over that case and treating me like a ho?”

  Charles turned and faced Buster, placing one palm on the table and the other on the back of Buster’s chair. He spoke in low tones, so only Buster could hear. “You want me in or out?”

  Buster looked straight ahead, tightened his face, and breathed hard through his flared nostrils. No answer.

  “In or out?” Charles insisted.

  “In.”

  “Then here’s some advice: shut your face and let me do the talking.” Charles paused, daring Buster to spout off again. “And put on a happy little smile. The judge has enough reason to put you away as it is.”

  Charles hovered there for a moment, inches from Buster’s face, then leaned back in his chair. He felt the tension creeping up his spine and sensed the anger seeping over from his client. This was no way to start a major hearing.

  A few moments later Silverman entered through the back door, and the clerk called the court to order.

  “I believe this is your motion, Mr. Arnold. Why don’t you call your first witness?”

  “The defense calls Rodney Gage.”

  Officer Rodney Gage, who had been sitting immediately behind the Barracuda, stood ramrod straight and took the oath. He climbed into the witness box, sat erect, and stared straight through Charles. Gage was the arresting officer; the man Charles Arnold was accusing of racial profiling. His demeanor made it clear that he did not take these allegations lightly.

  He’s so young, Charles thought. Gage had a boyish face, a full head of blond hair, smooth white skin—very white skin, Charles thought—and the build of a young athlete whose muscles had not yet succumbed to the erosions of gravity and time. Charles was hoping for an older man, a harsher-looking man, someone who didn’t look quite so, well, quite so honest.

  Charles breezed through some preliminary questions, making sure to station himself directly between the witness and the Barracuda. No sense letting the witness get some free coaching.

  “Are you the officer who arrested Buster Jackson on June 3 for possession of cocaine with intent to distribute?”

  “Yes, sir, I am.”

  “Now you didn’t see any drugs on Mr. Jackson or in his vehicle before you pulled him over, correct?”

  “Not before, that’s right. After we pulled him over, there were two bags of cocaine in plain sight, sticking out from under the front seat.”

  “But I didn’t ask you about after, did I, Officer?”

  Gage frowned. The Barracuda jumped to her feet, anxious to pick a fight. “Objection, argumentative.”

  Silverman, who had been watching the proceedings with the slightest hint of a bemused smile, lifted his chin from his hand. “Sustained,” he said pleasantly.

  Charles started walking in an arc now, as if circling his prey. The questions came faster, staccato style.

  “You understand, sir, that you’ve got to have a reasonable suspicion that my client was committing or had committed a crime in order to stop him, correct?”

  “Yes.”

  “You can’t just stop a law-abiding citizen for no reason.”

  “Correct.”

  “And one of the reasons for stopping a person cannot be the color of his skin. You understand that, don’t you?”

  “Sure.”

  “Then please tell the court, sir, your reason for pulling over my client on June 3. What caused you to be suspicious?”

  Officer Gage drew a long breath and leaned back slightly. This answer would be well-rehearsed. “First and foremost, the actions of Mr. Jackson. He was cruising the oceanfront, Atlantic Avenue to be exact, and appeared to be looking for somebody. I saw him, with my own eyes, pick up two young males, take them for a ride around the block, then drop them off at the same spot. In my opinion, the length of time they were in the car was sufficiently long for a drug deal to have occurred.

  “Second, the conduct of the men that Mr. Jackson picked up and dropped off. After they got out of the car, I noticed that they looked around suspiciously, saw our police vehicle, then hustled off and disappeared into the crowd.”

  Charles kept a poker face but felt the sting of that second factor. He had not anticipated that part of the answer. It would tend to distinguish the stop of Buster Jackson from the stops of the guinea pig motorists that Charles had recruited from his class.

  “Third,” Gage continued, “was the type of vehicle. It was a brand-new Cadillac Escalade SUV with tinted windows. The owner certainly had some bucks, and the windows could help conceal any illegal activities.

  “And fourth, the location of the transaction. We have a lot of drug activity at the oceanfront in the summer, particularly on Atlantic Avenue.” Gage paused for a moment, pretending to search the ceiling for other information. “I think that about covers it.”

  “Thank you, Officer Gage.” Charles walked back to his counsel table and, just before sitting, turned to the witness for one final question. “By the way, have you been on duty the last few weeks, and if so, what was your schedule?”

  Gage looked perplexed. “I work the swing shift—3:00 to 11:00 p.m.—Tuesday through Saturday. That’s been my schedule for the last two weeks.”

  Charles took his seat. “Your witness,” he said to the Barracuda.

  She rose immediately to the challenge and walked out from behind her counsel table. She stood next to where Charles was seated, so the witness could eye them both at the same time.

  “Let me ask you the one question that Mr. Charles here—”

  “Arnold,” Charles corrected her without rising. “The name is Charles Arnold.”

  “Okay. Let me ask you the one question that Mr. Arnold here was apparently afraid to ask—”

  “Objection.”

  “Sustained,” Silverman said immediately. “Ms. Crawford, let’s keep it from getting personal, shall we?”

  “Sure, Your Honor.” The Barracuda walked to the front of her own counsel table and stared at the floor for a moment, apparently thinking about a way to ask the question without drawing another objection. Charles found himself hanging on her every word, then realized what she had done. She had the entire courtroom—Charles, the law students who had come to see their professor in action, the newspaper reporter who had deemed this hearing worthy of coverage, and most important, the judge—anxiously listening and waiting for her next few words. She was good.

  “Officer Gage, was the race of the defendant a factor in deciding whether or not there was reasonable suspicion to stop him?”

  “Absolutely not.”

  “Did the fact that his skin color happened to be black, as opposed to white, even enter into your analysis as to whether it was likely he had committed a crime?”

  “No, ma’am. No way.”

  “Would you have pulled over and investigated a white man who did the same things that you have described?”

  “Yes.”

  “And have you, in the past, pulled over whites for the same type of conduct?”

  Sure. All the time.”

  “Now, Officer Gage, if the court rules against you, how would that hamstring your attempts to combat drug trafficking at the beach?”

  Charles bolted from his seat. “Objection, Your Honor, that question is totally improper.”

  “Sustained.”

  Charles sat back down, knowing he had procured a hollow victory. The question was improper, but it had planted a seed of the thought in the judge’s mind. The Barracuda really knew her stuff.

  “Do you make decisions about who to pull over and who not to pull over alone?”

  “No, ma’am. My partner and I will usually make those decisions together. I would certainly never pull over someone if my partner objected. I will usually say something like, ‘Let’s pull this guy and take a look.’ Then I’ll wait for him to concur or, if he doesn’t think it’s a good idea, to say so.”

  “Is that the type of thi
ng that happened with Mr. Jackson?”

  “I don’t remember specifically, so I can’t say for sure. But I’m reasonably certain we would have said something like that.”

  The testimony seemed innocuous on the surface, this talk about a partner, but it hit Charles hard. His stomach tightened and churned. Could it be? Why hadn’t I asked Buster? Why hadn’t Buster said anything? Charles took a quick sideways glance at his tightly wound client. The man was still seething from their earlier confrontation. But Charles needed to know. He leaned over and asked something he should have asked that first night in the cell.

  “Is this guy’s partner black or white?” Charles whispered.

  “No further questions,” the Barracuda said to the witness. “I’d like to recall this witness later if necessary. But for now, Your Honor, I’m through.”

  “Why does that matter?” Buster whispered back to Charles.

  The lawyer’s stomach, already in knots, now dropped to his feet.

  “You may step down,” Silverman said to an erect and unbowed Officer Gage.

  40

  “JUST ANSWER THE QUESTION,” Charles whispered to his client.

  “Black,” Buster said. He gave Charles a look of disdain. “Chocolate, bro. Dark chocolate.”

  Charles resented the comment. Was that what Buster’s lingering hostility was all about? A lack of trust because Charles’s skin color and pedigree were too light?

  “Why didn’t you tell me?”

  “You didn’t ask,” the big man snarled. “’Sides, what difference does it make? Gage busted me, not his partner.”

  Charles just shook his head. “It changes everything,” he whispered emphatically.

  “Next witness,” Silverman called out.

  “The defense calls Dr. Frederick Ryder.”

  At hearing his name, an unimpressive-looking man in the second row rose and proceeded to the front of the courtroom to take the oath. He was a short man with an uneven gait and an enormous head balanced on a pencil-thin neck. His sport coat hung limply on his thin, pear-shaped body, and he seemed ill at ease as he took his place in the witness box. He settled in and pushed his thick glasses to the top of his hawklike nose, an annoying habit that would be repeated many times during pressure-filled situations. He placed his folder of charts on the rail in front of the witness box, crossed his legs, and glanced nervously from Charles to the judge and back to Charles again.

  It was on this quirky little man, this pencil-pushing statistician from Old Dominion University, that Charles pinned all of his rapidly fading hopes for an early release of Buster Jackson. And even if Ryder performed like a champ, Charles would still need a minor miracle to blunt the impact of an African American partner being part of the decision to stop Buster.

  In a soothing monotone, Ryder shuffled through his charts and, at Charles’s prompting, explained his methodology. He had been asked to conduct a scientific sampling of investigative stops at the Virginia Beach oceanfront to determine if there was a pattern of racial profiling, he testified. Using the students in Charles’s class as guinea pigs, they had recreated the scenario of Buster’s stop, as closely as possible, a total of fifty-six times over the last fourteen nights.

  Four times a night, the statistician said, a student would drive down Atlantic Avenue in front of a parked Virginia Beach police cruiser and pick up a couple of other students who had been loitering the sidewalk. The driver would then drive once around the block and drop these same students off again, within viewing distance of the beach police, at approximately the same location. The cars would of course change, depending on the students involved. But more important, the race of the students would vary as well. Black drivers would pick up black passengers, and white drivers would pick up white passengers.

  Based on this study, Ryder concluded that racial profiling was indeed occurring at the beach, and he had the charts to prove it. Chart one, a colorful pie graph, showed the total number of times white students performed this routine (42) and the total number of white students who were pulled over as a result (11). A second chart, equally colorful, showed the total number of times black students did this (14) and the total number of times the blacks were pulled over (7). Chart three was the punch line: Whites had a 26 percent chance of being pulled over for this conduct; blacks had a 50 percent chance.

  In other words, Ryder said, blacks were almost twice as likely to be pulled over and searched for suspicious conduct. This was “unequivocal evidence of systemic racial profiling” in the informed opinion of Dr. Ryder. He pushed his glasses up with an index finger, his eyes darting from Charles to the judge.

  “Dr. Ryder, were you able to determine if any of these instances involved Officer Gage?”

  “Um, yes, I was. The students would always check the badges and identify the officers who had pulled them over.”

  “How many of these instances involved Officer Gage?”

  Ryder shuffled loudly through some papers, dropping a few on the floor. Bending over to retrieve them, he bumped the mike in front of him, causing it to squeal. “Sorry,” the PhD said. He found his page and looked back up at Charles, tilting that massive head to the side.

  “Four involved Officer Gage.”

  Charles stopped pacing, paused, then asked, “How many involved blacks and how many involved whites?”

  Thankfully, that information was on the same sheet of paper. “Three stops were blacks; only one was the stop of a white student.”

  Charles knew there were still unanswered questions.How many times did Gage see a white student do this and not stop him? How many times did he see a black student do this and not stop him? And Charles knew that the Barracuda was chomping at the bit to ask these and other similar questions. In fact, Charles was counting on it. She might be surprised at the answers, so long as his quirky little witness could remember the script.

  “Pass the witness,” Charles said.

  By late morning, Tiger had grown tired of the tweety birds chirping all around him. He stood outside in the play area, trying hard to ignore Joey and his chorus as they periodically filled the air with tweets. He also tried not to think about his dad, though he couldn’t help but get his hopes up based on what Stinky had said that morning. While he would miss the Pretty Lady, it would be great to be back home with his mommy and daddy, wraslin’ his dad on the living room floor. Time seemed to crawl as he dreamed his happy thoughts in the midst of the annoying birds chirping nonstop on the playground.

  Since Tiger wanted to be left alone, he waited in line for a turn on one of the precious few swings. It seemed that the girl occupying this particular swing would never leave, and it only inspired her to swing longer when she saw Tiger waiting patiently. And just as she finally did get off, after swinging for what seemed like hours, trouble showed up in the person of Doughy Joey.

  Though he hadn’t even been waiting in line, or really anywhere near the swing as far as Tiger could tell, Joey suddenly pushed himself in front of Tiger and plopped his big bottom down in the leather swing that Tiger had been waiting for.

  “Hey!” Tiger protested. “I was waitin’ for that.”

  “Tweet-tweet,” Joey said.

  “Stop it,” Tiger said, “and wait your turn.”

  “I ain’t waitin’ for nobody who’s got a drug dealer for a dad,” Joey said as he began to pump his legs to get the swing going.

  This made Tiger furious. His dad might be in jail, thanks to the stupidity of that mean lawyer lady, but he sure wasn’t no drug dealer. And Tiger wasn’t about to let some fat dough boy say he was. Tiger was on the verge of tears, and he fought the urge to run away. But he also felt the anger well up inside him, overtake the fear, then dictate his next move.

  “Take it back!” Tiger yelled. “Take it back!”

  Joey might be bigger and stronger, but right now Tiger was a lot madder. And Tiger had seen enough fistfights to know that when five-year-olds fight, the meanest and maddest kid usually won.

  Joey drag
ged his feet and stopped the swing. He got up and took a few steps toward Tiger, looking down his nose at his skinny little foe.

  “Make me,” Joey sneered.

  And Tiger almost did just that. He was so mad. He almost punched the big kid’s lights out right on the spot. But looking up at Joey, who seemed to have grown six inches in the few seconds since he had gotten off the swing, Tiger had a sudden change of heart.

  “I’m tellin’,” he said, and he turned to find Miss Parsons.

  Before Tiger could even finish his turn and show his back to his plump foe, Joey shot both of his short, pudgy arms out and popped Tiger hard on the shoulders. This caught Tiger by surprise, and it caught him just as he was turning. Before Tiger knew what hit him, he was sprawled out on the ground.

  Someone yelled, “Fight!” as Tiger popped back up, fists raised, facing Joey, who now seemed to have grown another few inches. Tiger’s lower lip was thrust out, his bony knees were shaking, and his eyes were watering as Joey slowly advanced. Tiger resisted with all his might the urge to turn tail and run, instead choosing to backpedal slowly, fists raised, looking as mean as possible despite the tears and shakiness of his limbs. Joey circled and stalked; Tiger retreated and cried.

  After ten or fifteen seconds—the longest ten or fifteen seconds of young Tiger’s pitiful life—he heard the angry and welcome voice of Miss Parsons cutting through the crowd. “Boys!” she cried. “Stop it right now!”

  Tiger gladly put down his fists without ever having to use the deadly weapons. He was just thankful that Miss Parsons had intervened before somebody—namely him—got hurt. Miss Parsons grabbed both Tiger and Joey by the arm and started yanking them inside. By the time the smoke had cleared, both kids were facing some serious time-out, though Joey definitely got the worst part of the noisy lecture. Miss Parsons even made both boys apologize, Joey for his thoughtless remarks about Mr. Hammond, and Tiger for his generally unchristian conduct. Then Tiger and Joey were sent to separate rooms, all by themselves, and instructed to think about their sorry behavior.

  Tiger thought about survival. He had finished crying for now, but he was still scared to death of Joey. Though Tiger was no great fan of time-out, at least he was safe while he served his time in solitary confinement. If he were put back into the general day care population, Joey would surely be out for blood, and there would be no guarantee that the chirping would have died down from the others anyway. No sir, the best plan for survival would be to figure out a way to spend the rest of the day on time-out, unpleasant as that might be. By tomorrow his dad would be home, and he could put all this day care stuff in his rearview mirror.