by Randy Singer
She highlighted the case of Whren v. United States. Charles lost count after she mentioned it five times. Whren this and Whren that; Justice Scalia said this and Justice Scalia said that. Charles had to hand it to her. She knew the lawyerly art of overkill. And the whole time, Buster Jackson was sitting next to Charles, squirming in his seat, throwing the Barracuda dastardly looks, and playing the part of a vindictive drug dealer to a T.
Charles leaned closed to Buster’s ear. “Happy face,” he whispered.
“Shut up,” Buster said.
“Give the police officers the discretion they need to do their job,” the Barracuda said. “None of us were out there except for Gage and Mitchell. These are split-second decisions made by those risking their lives to keep our streets safe. Let’s not sit back and second-guess them in the luxury of the courtroom and further handcuff our officers in the fight against crime.”
Twenty minutes after she started, the Barracuda completed her “brief ” closing statement and sat down. Charles drew a deep breath, glanced fleetingly at his client, then stood to respond.
“This case is not really about Officer Gage or Buster Jackson or even the ability of police officers to do their job,” Charles said. “It’s about the Constitution. It’s about the rights of all citizens, black and white, rich and poor, to be treated equally under the law. It’s about making America a place where you could never be arrested for simply driving while black.”
As he spoke about the land of equality, he noticed Buster sit a little straighter in his chair. Five minutes of railing against racial injustice, and his client was actually nodding in a place or two. “Declare the days of Rosa Parks over,” Charles urged. “Let African Americans know that they can ride in the front of the bus or the front of their own car without the fear of being treated differently. If our Constitution means anything,” he said, “it means that a man like Buster Jackson is entitled to the same equal treatment, the same dignity under the law, as the mayor of Virginia Beach or even the president of the United States.”
“’At’s true,” he heard Buster mumble.
Charles completed his argument in just under ten minutes, and he did it without one reference to theWhren case. When he sat down at counsel table, he felt the handcuffed hands of Buster reach over and pat him on the back.
“Not bad,” the big man whispered. “Flashes of Cochran.”
“He had more to work with,” Charles whispered. “Like an innocent client.” This brought a soft snort from Buster and the faint hint of a smile. It disappeared quickly, but a new layer of respect lingered. They had just been through a battle together—fellow members of the darker nation fighting a lingering prejudice—but Charles still didn’t know if he could really trust the man.
“Both lawyers have presented excellent arguments,” Silverman said after several moments of silence. “And this is not an easy case.
“There’s a lot at stake here,” he continued, his face masking all emotion, “not just for Mr. Jackson but for the Virginia Beach police force. This is not the kind of case one can decide quickly or lightly—” he paused and looked from Charles to Crawford—“so I’ve decided to take this matter under advisement. That will give me time to think about the arguments of counsel and do some research of my own. I expect to render an opinion some time within the next few weeks.”
He banged his gavel. “We’ll take a ten-minute recess and then start the preliminary hearing in the Hammond case.”
“All rise,” the clerk said.
Charles shrugged and stood to his feet. He felt, well, he felt nothing. Okay, maybe a little cheated. All that work and—for today’it was like a tie. Kissing your sister. Nothing special.
“What happened?” a bewildered Buster asked.
“Overtime,” Charles said.
As the deputies grabbed Buster to lead him away, Buster shook an arm free and gave them a wicked glance. “I need a word with my attorney,” he snarled.
The deputies looked at each other. “Ten seconds,” the older one said. They took a couple of steps back.
Buster moved next to Charles, glancing over his shoulder to make sure the deputies weren’t eavesdropping. “Pray for me,” Buster said gruffly. “I’m one of you dudes now.”
“I will,” Charles promised. But even as the guards escorted Buster away, he wondered if it was really true.
42
THE FOUR OF THEM—Charles, Nikki, Thomas, and Theresa—huddled in a small windowless conference room adjacent to Silverman’s main courtroom. Thomas and Theresa sat on one side of the table holding hands. Charles sat on the other, suit coat unbuttoned and feeling spent from the morning’s proceedings. Nikki paced back and forth behind Charles, giving some last-minute instructions to the Hammonds and generally pumping up the troops.
Unlike Buster, Thomas did not wear leg irons, handcuffs, or an orange jumpsuit. Charles had petitioned the court to allow civilian clothes for his client—unusual for a preliminary hearing but not unheard of—on the theory that the press coverage might poison the prospective jury pool if video of Thomas in jail clothes was broadcast all over Virginia Beach. The court agreed, so Thomas wore an ill-fitting sports coat, a dingy white shirt frayed around the collar, and a tie that was both too short and too wide. Theresa was no fashion plate either, but at least her dark blue pleated dress fit fairly well and had recently been cleaned. They made quite a contrast to Charles and Nikki, flamboyant dressers who pushed the bounds of courtroom fashion.
“Please try not to get your hopes up,” Nikki said, “because preliminary hearings are notoriously difficult to win. The judge only needs to find probable cause, and then the case is bound over for a jury trial. It’s a rare case where the judge doesn’t find probable cause.”
“Rare is an understatement,” Charles piped in. “It’s nearly impossible to win a case like this at a preliminary hearing.”
“But that doesn’t mean we won’t try,” Nikki promised. “Because it is possible, especially with the stuff we’ve got for the cross-examination of Armistead.” She stopped pacing for a second and smiled at Charles. “And you’ve got one of the best in the business representing you.”
Charles managed his own self-conscious smile. He wanted to prepare the clients for the worst that could happen at today’s hearing, and Nikki was not exactly helping.
“Have you got any questions before we go out there?” she asked.
Thomas and Theresa shook their heads. But Charles didn’t like what he saw in their eyes. They had a look of expectancy, a false hope that today might be the day. They needed to be ready for the long road ahead of them and the very real probability that today was just the start.
“Like we said a few minutes ago, don’t get your hopes up at this preliminary hearing,” Charles warned. “I’m going to play it by ear. If I sense Silverman is going to find probable cause no matter what I do, I won’t even bother to cross-examine Armistead. There’s no sense in previewing our cross-examination now and giving them two weeks before trial to think of good answers. So if I ask no questions, you’ve just got to trust me and know that I’m taking the long-term view and doing what’s best for the case.” He looked at both Thomas and Theresa. “Okay?”
They nodded their heads.
“Oh, that’s beautiful,” Nikki mumbled, standing behind Charles. “The old deaf-mute defense again.” Charles turned to see her leaning against the wall, arms crossed, scowling at him. He frowned back.
“What?!” she exclaimed. “Why do I get stuck with all the lawyers who excel at sticking their head—” she paused and lowered her tone just a notch—“in the sand?”
Charles decided to ignore her. He didn’t have the energy for bickering with her right now. He turned to his clients again, showing Nikki the back of his head, and asked in the most pleasant voice possible if they were ready.
“Can we pray before we go out there?” Thomas asked.
“Sure.” Charles resisted the urge to turn and see the look on Nikki’s face.<
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“And before we do, I do have one favor I hate to even bring up but really feel I oughta,” Thomas said.
“Okay,” Charles replied tentatively.
Thomas stared down at his hands. “If ’n we lose today, and I’m still in jail for Saturday night’s Bible study, could you bring Buster a King James Bible? I’d have Theresa buy it, but . . . things are pretty tight right now. He promised me he’d read it. I mean . . . he’s done started readin’ mine. I mean, the man ain’t perfect, but God’s doin’ a work in ’im.”
Charles heard Nikki sigh behind him. “Sure,” Charles said. “If you’re still in Saturday night, I’ll bring him his very own King James.”
He saw the look of satisfaction in Thomas’s eye, then had an idea. He turned to Nikki and flashed her a phony smile. “How about you leading us in prayer?” he said sweetly.
Her eyes narrowed for a flash before she recovered. “I’m really kind of a fan of silent prayer,” she said, killing Charles with her eyes. “I think I read something once about women not praying out loud.”
Nikki was in a foul mood by the time the preliminary hearing started. After trying to embarrass her in front of the clients, Charles had arranged the seating in the courtroom so that he had a buffer from her. Charles sat on the left end of the counsel table, closest to the podium. Next to him sat Thomas, then Theresa, then Nikki. She was too far away for Charles to hear her suggestions. She might as well have been in Siberia. She shoved her chair as far to the left as possible, practically in Theresa’s lap.
The Barracuda first called the Hammonds’ pastor—the Reverend Richard Beckham. The pastor was heavyset and severe-looking, about fifty-five years old with a full head of greased-down jet-black hair. His flat face settled into a natural frown as he testified, eyes sparking occasionally with barely controlled anger. He was under subpoena and not happy about it. He apparently had no desire to testify against faithful tithers like the Hammond family.
After five minutes of preliminary questions, the Barracuda paused, signaling the start of her important questions.
“Did Thomas or Theresa Hammond ever call you and ask you to come and pray with them because they thought Joshua was going to die?”
“Object,” Nikki whispered from her perch in Siberia.
Charles had already stood. “Objection, Your Honor. That’s clearly covered by the priest-penitent privilege. The reverend can’t be forced to testify about what one of his church members told him.”
But the Barracuda had a ready answer. “He can if the privilege is waived.” And the fight was on.
It seemed that at little Joshie’s funeral, the reverend preached for a good five or ten minutes on the incredible faith displayed by Thomas and Theresa Hammond. As the reverend told it, little Joshie had been on death’s door for several days, and his mom and dad had never requested human medical help but simply prayed in faith for his healing. The reverend had personally prayed with them and talked with them during this ordeal. Theirs was an incredible faith, he told the mourners at the funeral; most regular folk would have taken Joshie to the hospital when it first became apparent that his life was in danger.
The Barracuda argued that this sermon waived the priest-penitent privilege. The conversations between the Hammonds and their pastor could hardly be characterized as confidential when the pastor later broadcast them all over the church and the parents never objected to his doing so.
Charles scoffed at the argument, making Nikki momentarily forget the fact that she was supposed to be mad at him. He peppered the judge with questions. Was the deputy commonwealth’s attorney serious? Did she really expect two parents, who had just lost their child, to stand up in the middle of a funeral service and object to what the pastor said? If this didn’t qualify as priest- penitent privilege, what would? If Reverend Beckham was required to testify, how could any church member ever feel safe confiding in their pastor again?
The fireworks lasted about ten minutes, starting off with a heated discussion of the issues, then degenerating into personal insults between lawyers. Nikki was delighted.
Silverman shattered her mood with his ruling. “The priest-penitent privilege is only designed to protect those conversations held in strictest confidence between a pastor and a church member. Here Reverend Beckham apparently used those conversations as a preaching point in a sermon. The Hammonds did not object at the time or at any time thereafter to the way Reverend Beckham shared this information with the entire congregation. It defies reason to say that the reverend could share this information with an entire room full of people at a funeral but not be required to share this same information in a court of law engaged in a search for the truth. Accordingly, I hold that the privilege has been waived, and the reverend must answer the questions.”
Nikki groaned louder than she intended, and Silverman shot her a reproving glance. Charles also gave her a scolding look, then scribbled a note. He folded it and passed it to Thomas, who passed it to Theresa, who passed it to Nikki. Nikki picked it up, unfolded it, and read it even as Reverend Beckham was telling the court about every conversation he ever had with Thomas and Theresa Hammond in the days preceding Joshua’s death.
Relax, the note said. I think it’s good the court let him testify. Now we have an issue to argue on appeal if we lose the case.
This was a mentality that Nikki could never understand. Why try the case thinking you were going to lose? Nikki scribbled a reply note: Great strategy, Charles. Why don’t we just have our clients jump up and scream out that they did it; then we can argue insanity on appeal?
After Charles read the note, he made a great show of wadding it up and throwing it in his briefcase. He looked down at Nikki, mouthed, “Chill out,” and returned his attention to the damaging testimony of Reverend Beckham.
Fifteen minutes later the Barracuda had finished mining the nuggets of gold from the reverend’s testimony and returned to her seat. Nikki had a page of notes ready to pass to Charles for cross-examination. She was really hoping for a ten-minute break. That way she could give the reverend a piece of her mind in the hallway, shake him up a little, and still have a few minutes to discuss his cross-examination with Charles.
But a break would not be necessary. When the judge turned to Charles, the lawyer simply leaned back in his chair, legs crossed nonchalantly, and declared that he had no questions at this time. Nikki almost came out of her seat. She leaned forward on the counsel table, staring at Charles, trying to get his attention. But he would not even look at her, and within minutes the Barracuda was calling her next witness: Dr. Sean Armistead.
Nikki, now smoldering, got up and moved to a chair directly behind Charles. It was Harry Pursifull all over again.
“Object,” Nikki would whisper at various points.
“Shh,” Charles would reply.
“How can you let him get away with that?” she would exclaim, partway between a whisper and shout.
“I’ll deal with it at trial,” Charles would respond over his shoulder.
“Gimme a break,” “That’s ridiculous,” “He’s lying,” and other running commentary from Nikki peppered Armistead’s testimony. Charles just sat there, legs crossed and hands folded in his lap, as if he were watching a play or having afternoon tea.
“Aren’t you going to at least take notes?” Nikki whispered.
“What do you think the court reporter is for?” Charles responded over his shoulder. “You think she’s missing something that I could get down better writing it out longhand?”
On the witness stand the doctor explained how Theresa’s delay in seeking treatment had cost young Joshua his life. What made it worse, Armistead said, was that Theresa initially lied about how long Joshua had been sick. In order to hide her own shortcomings, Theresa at first told Armistead that Joshua had only been running a fever for three days. After Joshua died, Theresa finally fessed up and admitted that it had been more like five days. Incidentally, Armistead said, this five-day time frame was consistent wit
h what the children said when their statements were taken by Dr. Byrd. If Armistead had known earlier that Joshua had been sick for five days, it might have changed his course of treatment.
“That’s not true,” Theresa whispered to her husband and Charles. “I never told Armistead that Joshua had been sick five days. It had only been three.”
“I know,” Thomas said, placing a soothing hand on top of his wife’s trembling one. “Charles will handle it.”
“At trial,” Charles whispered. “At trial.”
“Gimme a break,” Nikki said, this time louder than a whisper. “Why not now?”
Charles didn’t answer, choosing instead to focus on the testimony of a doctor who, in Nikki’s opinion, seemed very anxious—too anxious’to help prove a case against his former patient’s mother. Perhaps it was just frustration at a senseless loss of life. But it seemed to Nikki like something more, something hard to put a finger on.
“No further questions,” the Barracuda said.
“Nothing from the defense at this time,” Charles said without standing.
“Figures,” Nikki said.
The Barracuda then picked up the prayer journal, looked over at Charles, and put it back down. “The prosecution rests,” she said.
Charles stated that he would be calling no witnesses, and to nobody’s surprise, Judge Silverman found probable cause. The lawyers and judge discussed a few scheduling matters; then Thomas was taken back into custody and court was adjourned. The Barracuda, without acknowledging Charles, quickly left the courtroom to go hold forth for the media on the courthouse steps. Theresa looked at Charles and Nikki with vacant eyes, gave them each a hug, promised not to say anything to the media, and left as well. This left Charles and Nikki, the last two persons in the courtroom, packing their briefcases in stony silence.
Nikki could no longer hold her tongue. “I don’t see why you couldn’t at least—”
“Don’t start on me,” Charles said, cutting her off with an intense stare and an icy tone. “I’ve heard enough for one day.”