Dying Declaration

by Randy Singer

  More nodding from Tiger. “Yes, ma’am.”

  “That’s what I thought,” said the Barracuda, who was actually smiling at Tiger. She then took a few steps back to her own counsel table and picked up a piece of paper.

  It was the opening Tiger had been waiting for. He could sense that things were not exactly going his way. The look on his dad’s face. Miss Nikki’s, too, for that matter. This Mean Lady was a bigger bully than Doughy Joey.

  But Tiger had a secret weapon.

  The other night he had watched carefully as Miss Nikki applied the Power Ranger tattoo to his upper arm. Just wet the little piece of paper and rub it on—no big deal. The lucky thing was that more than one tattoo was on that same piece of paper. Miss Nikki had thrown the others in the trash, but Tiger had scooped them out and saved them.

  So now, as the Mean Lady stepped back to her table, Tiger quickly unbuttoned the cuff of his ragged white shirt and started rolling up the sleeve. He thought he remembered putting it on his right forearm . . . Yep, there it was, a little messy, the colors running together.

  He flexed his little arm and put his elbow on the rail in front of him, resting his chin on his fist. It wasn’t exactly a natural pose, but it got the job done. When the Mean Lady turned around, she would sure be surprised . . . and probably a little scared. It would serve her right.

  She would be staring right at his newest Power Ranger tattoo.

  “Oh my goodness,” Nikki heard Theresa Hammond whisper. Nikki felt the eyes of Thomas Hammond boring into her, no doubt remembering Nikki’s own tattoo on her left shoulder.

  “Where did he get that?” Theresa wondered. Thomas nodded his head in Nikki’s direction.

  The Barracuda turned toward the judge, not yet noticing her beaming little witness. “I would like to introduce into evidence, as our next exhibit, this court order regarding custody, which forbids the Hammond children from having any unchaperoned contact with their parents.”

  Nikki could hear one or two of the jurors snicker. Silverman had his own hand nonchalantly over his mouth, probably suppressing a grin.

  “I would like to draw particular attention to paragraph three, which mentions that one of the reasons for this stipulation is the possible prejudice that would result in the testimony of the children if such contact were allowed.”

  The Barracuda finally seemed to realize that she was the only one in the courtroom missing something. She glanced at Tiger, snickered without thinking, and shook her head.

  The courtroom burst into laughter. Tiger looked stunned.

  “That’s really nice,” the Barracuda said.

  “Thanks.”

  Then she lowered her tone, a signal that the fun and games were over. “Now, are you ready to roll your sleeve back down and answer some more questions?”

  Tiger shot a puzzled look toward his dad and then scrunched up his worried little brow. Nikki didn’t dare look at the expression on Thomas’s face, but she knew it promised Tiger a heap of trouble later. “Sorry,” Tiger said quickly. “It’s dus’ a tattoo.”

  “I know,” the Barracuda said, “but let’s get back to the questions.”

  Tiger quickly rolled down his sleeve, and Nikki surveyed the jury. Most were smiling. One of the moms had her head tilted to the side, the softest look of sympathy on her face.

  The Barracuda stiffened. “Now, John Paul, have you had any contact with your mom or dad when Ms. Moreno was not present between the time of your original videotaped statement and your testimony in court today?”

  Tiger looked thoroughly confused and just shrugged his shoulders.

  “Okay, let me ask it this way.” The Barracuda moved over in front of the jury box. “Before today, when is the last time you saw your mom?”

  “Last night,” Tiger said helpfully.

  “What time?”

  “The whole night. Me and Stinky stayed overnight there.”

  “Stinky is a nickname for your sister, right?”

  “Oops,” Tiger said, smiling an embarrassed smile. “Her name is really Hannah.”

  “Was Ms. Moreno there with you and Hannah the whole night?”

  “No, ma’am. She dropped us off.”

  Nikki noticed, out of the corner of her eye, Silverman glaring at her. Nikki decided to keep her gaze fixed on the witness.

  “So regardless of what the court order says, Ms. Moreno dropped you off at your mom’s house for the entire night last night. Then the next day—today—you come in here and change your testimony?”

  “Objection,” Charles interjected as he stood. “Argumentative.”

  “I guess so,” Tiger said.

  Charles turned up his palms and sat down.

  “In addition to telling you what to say as a witness and violating a court order by dropping you off at your mom’s house, did Ms. Moreno ever say anything bad about the police or myself?” the Barracuda asked.

  This brought Charles to his feet again. “Objection. Ms. Moreno is not on trial here.”

  “Goes to bias, Your Honor,” Crawford said. “And to witness tampering.”

  “That’s ridiculous,” Nikki shot back, now also standing.

  “Sit down,” Silverman snarled. He gave Nikki an icy stare as she took her seat. Then he turned to Charles. “Your objection is overruled, Mr. Arnold. I think it does go to the issue of bias.”

  All eyes turned back to Tiger, who had that deer-in-the-headlights look.

  “Do you remember the question?” the Barracuda asked.

  Tiger vigorously shook his head from side to side.

  “Did Nikki Moreno ever say anything bad about the police officers or about myself?”

  “Yes, ma’am.” It was barely a whisper. Tiger looked down, embarrassed, his hands tucked under his thighs.

  “What did she say?” the Barracuda asked. “And when did she say it?”

  Tiger hesitated for the longest time, perhaps racking his brain for a loophole in his obligation to tell the whole truth. Apparently he could find none. “She called you a witch,” Tiger said firmly. A few of the jurors snickered.

  “A witch,” the Barracuda said emphatically. “Imagine that. Are you sure witch was the word she used as opposed to something that sounds like witch?”

  “Oh yes, ma’am,” Tiger said, “’cause I asked her to say it again dus’ to make sure.”

  “And when was this?” the Barracuda asked condescendingly.

  “Well,” Tiger said, pursing his lips and wrinkling his forehead as he thought, “one day we were playing secret agents, spying on that doctor guy’s house in the middle of the day—” Nikki slouched down in her seat, wishing she could become invisible—“and then, all a sudden, we saw you! And Miss Nikki said, ‘She’s a witch,’ and then we saw you go inside—”

  “That’s not what I asked,” the Barracuda interrupted sharply. “I only asked what she called me and when this was.” The Barracuda’s face suddenly flushed. “Judge, I ask that his remarks be stricken from the record.”

  Charles was on his feet once again. “Judge,” he cried, “the witness is entitled to finish his answer.”

  Tiger’s eyes darted back and forth from Charles to the Barracuda and then quickly to Nikki. Then suddenly, in the split second while everyone waited for a ruling from Judge Silverman, Tiger decided to take his right hand out from under his leg and raise it straight up in the air, as if he were the smart kid who sits in the front row of the classroom and knows all the answers.

  “Son, you may put your hand down,” Silverman said kindly. Tiger looked confused but obeyed the judge’s instruction. “However, I will not strike his answer from the record. Ms. Crawford, you asked the question. Just because you don’t like the answer does not mean that it’s irrelevant.”

  The Barracuda crossed her arms and stared at Silverman.

  “Thank you, Your Honor,” Charles said.

  For the next few seconds, the Barracuda made an elaborate display of going back to her counsel table and checking through som
e notes. Tiger’s eyes followed her every step of the way. Finally, she looked at the judge and said simply, “No further questions,” then took her seat.

  Charles rose immediately. “A brief rebuttal, Your Honor?”

  “Keep it short,” Silverman said.

  Charles buttoned his suit coat and approached the witness stand. “I couldn’t help but notice that you had your hand up a few minutes ago when you were trying to answer one of Ms. Crawford’s questions. Was there something else you wanted to say?”

  Tiger’s eyes brightened. “Yes, sir. She asked me when this happened, and I ’membered what happened as she was talking to . . .” He pointed to Silverman.

  “The judge,” Charles said.

  Tiger, grateful for the chance to explain, spit the words out as quickly as his little tongue could go. “Yes, sir, the judge. But what I ’membered is that it happened the exact day after my daddy went to court the last time. ’Cause I got into a little fight with Doughy Joey at day care the last time my daddy went to court, but it wasn’t my fault, and we’re good friends now. So I was with Miss Nikki instead of being in day care, and she called the Mean Lady a witch, and then I said, She really is a witch,’ and then Miss Nikki said how strange it was that the Mean’uh, the lady over there—would be at the doctor’s house instead of meeting at the office in the middle of the day on the very next day after everybody had gone to court. And Miss Nikki said there must be somethin’ strange goin’ on between them cause there’s dus’ no reason for that ’cept—”

  “Objection, Judge,” the Barracuda shouted. “This is nothing but pure hearsay.”

  “Sustained,” Silverman said. “Mr. Arnold, I think you’d better change your line of questioning.”

  “I’m sorry for calling her a witch,” Tiger said sincerely, looking up at the judge with puppy-dog eyes. Then Tiger quickly looked back down at his lap.

  Nikki just wanted to run up and hug him. Then she saw a thin, sweet smile cross the lips of Silverman and a sympathetic smile form on the face of practically every juror in the box.

  “It’s okay,” Silverman said. “We’ve all been called a lot worse.”

  Then Tiger himself grinned, the big toothy smile of a boy who has just gotten all his permanent front teeth but not yet grown into them.

  “No further questions,” Charles said, also smiling.

  “That’s my boy,” Thomas said softly.

  64

  “THE DEFENSE RESTS,” Charles said proudly. Tiger had returned to his seat in the spectator section, showing off his tattoo for some curious reporters. Stinky, who had been at day care that morning, would come to court during the lunch break. Charles knew it would be important to have both kids there for closing arguments.

  “Rebuttal witnesses?” Silverman raised an eyebrow at Crawford.

  She stood and looked at Charles. “The commonwealth calls Buster Jackson. He’s in lockup, so it may take a few minutes to get him here.”

  Charles had the sinking feeling of a case headed south—the same type of feeling he experienced when he found out that one of the officers who arrested Buster was black. Buster Jackson! Whatever it was that Buster had to say, it wouldn’t be good. Charles thought about trying to exclude Buster from testifying based on the fact that he wasn’t on the Barracuda’s witness list. But Charles knew that the court would generally allow an attorney to call a rebuttal witness who wasn’t on the list, especially if the testimony was unavailable or unanticipated when the trial started.

  “What’s this all about?” Charles whispered to Nikki. She passed the message along to Thomas, who seemed to have no idea.

  Charles stared at Buster as he took the stand but couldn’t get the big man’s attention. This was going to be bad. His own client appearing as a witness for the other side and avoiding eye contact.

  The Barracuda had dressed Buster up, but he still looked like a thug. The suit coat could not hide his massive pecs and lats. And the dress shirt seemed to strain around his neck—what there was of a neck—and barely hold together. The huge forehead that shadowed his dark eyes, the close cropped hair, the scruffy Fu Manchu, and the occasional gleam from the gold tooth all gave Buster the look of a professional prizefighter. He wore the clothes of a preacher on the body of a brawler.

  The Barracuda walked him through the preliminaries. Like any good lawyer, she decided to air out the dirty laundry on direct so it would not come up for the first time on cross. This forced Buster to confess his two prior drug convictions and his pending charge for possession with intent to distribute cocaine.

  “Has the commonwealth promised you anything in exchange for your testimony today?” the Barracuda asked.

  Charles tensed, holding his breath. He had already concluded that he would have to withdraw from Buster’s case as soon as the Barracuda was done with her direct examination. He knew Buster must have cut some kind of deal. And now he was about to find out, in open court, about an apparent immunity deal where his own client would stab another of his clients in the back. This was bizarre.

  “Yeah. In exchange for ratting out Pops and coppin’ a plea this morning,” Buster corrected.

  “I stand corrected,” the Barracuda said. “Has the commonwealth promised you anything in exchange for your testimony in this case and your guilty plea on the pending charge of possession with intent to distribute?”

  “Yeah,” Buster said gruffly. “You spring me on time served. Which ain’t so hot ’cause me and my lawyer had a motion to dismiss pending anyway based on racial profilin’ by your boys, plus—”

  “Who is your lawyer?” the Barracuda interrupted.

  Buster narrowed his eyes and gave Crawford a reproving glare for the interruption. “Can I finish here?” A beat of silence followed, accentuating the animosity between lawyer and witness. “Plus, that guilty plea will be on my rap sheet, and I’ve got three years probation. If I get busted again, I’m toast.”

  “Are you done?” the Barracuda asked.

  Buster stuck out his lips in defiance and nodded.

  “Then please tell us who your attorney is on the possession-with-intent-to-distribute charge.”

  Charles jumped up. In his law school classes, he had always taught his students that the most important thing any lawyer brought to the courtroom was his or her own credibility. Once you lost that, you lost everything. And Buster Jackson was about to paint Charles as the type of lawyer who would represent anybody, claim anything, just to see the guilty walk.

  “Objection,” Charles said. “May we approach?”

  But before Silverman could answer, Buster extended his muscled arm and pointed his thick finger straight at Charles. “That man,” he said.

  Charles felt like he had been shot. He slumped back into his chair.

  “The witness will wait to answer the question until after I have ruled on the objection,” Silverman scolded. “Is that clear?”

  “Yeah, sure,” a surly Buster said. But the damage had already been done. And to make matters worse, Charles knew the jury would think he was trying to hide it with his objection.

  “Are you presently an inmate in the Virginia Beach City Jail?” the Barracuda asked.

  “Yeah.”

  “And who is your cellmate?”

  “That man.” Buster pointed. “Thomas Hammond . . . Pops.”

  “Did Mr. Hammond discuss this case with you last night?”

  “Yeah.”

  “Please tell the ladies and gentlemen of the jury, to the very best of your memory, precisely what he said.”

  “Well, last night Pops was mopin’ around the cell . . . and I’m like bustin’ on him tryin’ to get him to chill a little. Ain’t nothing workin’. So, I’m like, ‘Pops, what’s doggin’ you, man? I heard your lawyer broke bad in court today, but you’re actin’ like you’re goin’ down.’” As he spoke, Buster, who had been looking at the Barracuda, now shifted and faced the jury.

  “So, Pops says, best I remember, ‘We had a good day in court, but I s
till need to testify and my lawyer says I can’t.’ Pops says, ‘If I don’t testify, the jury will wonder why. If I do testify, it all comes out. How can a jury let me skate if’n they hear—Pops is always sayin’ if’n—‘if’n they hear that I knew my boy was gonna die, but I wouldn’t take the kid to the hospital? What else can a jury do to someone who demanded—I mean flat out demanded—that his woman not take the kid for three solid days—all the time knowin’ the kid is dying?’”

  The Barracuda waited for several seconds to let this testimony sink in. Then she took a few sideways steps and asked another question, obviously designed to have the witness repeat the same damaging information.

  “Is that what Thomas Hammond said to the best of your memory, that he knew Joshua was dying but refused to take him to the hospital for three days?”

  “’At’s what he said. He talked like it was him, his decision, nobody else’s.” Buster flipped up his palms. “’At’s what I know.”

  “And what did you say to him after he confessed these things?” the Barracuda asked.

  “I jus’ told him, ‘A man’s got to do what a man’s got to do.’”

  “Meaning what?”

  “Meaning Pops had to decide if he was gonna take the stand or roll the dice on the Fifth.”

  “And then what did you do?”

  “I called you.”

  “No further questions. Please answer any questions that Mr. Arnold might have.” And with that, the Barracuda sat down and rested her case on the broad shoulders of Buster Jackson.

  Charles wasted no time in going on the offensive. “First, Your Honor, I’d like to make it clear that I am withdrawing as counsel of record in the case of Commonwealth versus Buster Jackson. It would be unethical to continue representing someone I’m about to prove a liar.”

  “Objection, Your Honor,” the Barracuda called out. “I don’t mind if Mr. Arnold wants to withdraw in Mr. Jackson’s case, especially since that case is basically over. But his gratuitous comment is prejudicial, unprofessional, and uncalled—”

  “Unprofessional?” Charles snarled. “You’re calling me unprofessional?”