So even though we shook hands, and he was all smiles, I was not going to get sandbagged by any cornpone.
Kate was sitting in the gallery with Sister Mary. When they brought Eric into the courtroom, in his prison garb, and shackled him to the chair, I caught a glimpse of Kate. She was holding a tissue up to her eyes. Sister Mary patted her gently on the arm.
68
JUDGE PRAKASH GOT us underway at 9:05 a.m.
Just after stating my appearance, I said, “Judge, if I may request that my client not be shackled during the hearing. He’s certainly not an escape risk.”
Radavich wasted no time shooting to his feet. “Mere statement of counsel is not authority, Your Honor. There is no reason to deviate from procedure in this instance.”
“This isn’t Ben-Hur, Your Honor. Mr. Richess is not a slave to be chained to an oar.”
Prakash smiled. “Colorful analogy, Mr. Buchanan. But will the restraints impede your client’s ability to participate in the hearing?”
“It impedes his ability to be treated like a man presumed to be innocent.”
“I’ll be sure to keep that in mind,” the judge said. “Let’s get on with the hearing.”
Radavich started off with an LAPD blue suiter named Baron. He was sworn and gave his name for the record.
“What is your current position, Officer Baron?” Radavich asked.
“I’m a patrol officer–two, working out of Hollywood Division.”
“And how long have you been with the department?”
“Four years last month.”
“And were you on duty on the night of January thirtieth?”
“Yes, with my partner, Officer Trujillo.”
“Please describe what occurred at around ten-thirty.”
“We answered a call at ten-thirty-three p.m., a complaint about loud music coming from an apartment. We arrived at the location at ten-forty-five and proceeded to the apartment where the music was coming from.”
“The music was still playing?” Radavich said.
“Yes.”
“Was it loud?”
“Very loud. Rock music of some kind.”
“But you could hear it through the door?”
“Yes. And down the hall. It was obviously a disturbance to the neighbors.”
“What happened next?”
“I spoke to the next-door neighbor, who said she had pounded on the walls, and finally the door, but got no response. Which is when she decided to call in a complaint.”
“The neighbor?”
“Yes.”
“What did you do then?”
“I knocked on the door and announced my presence. I waited approximately ten seconds, then knocked again, and announced again. When there was still no answer, my partner called our supervisor at Hollywood Station to come in.”
“You did not attempt to enter the apartment or get a manager to unlock it?”
“Not at that time.”
“Why not?”
“There were no exigent circumstances. Loud music alone is not enough. The decision to enter goes to a field sergeant supervisor. Sergeant Leon arrived ten minutes after our call. He then directed the building manager to use a master key to unlock the door.”
“Describe for the court what you found when you entered the apartment.”
“There was loud music coming from one of the iPod systems, in the front room.”
“Can you explain a little more what that looked like?”
“Yes. It was about the size of a toaster oven, with speakers, and there’s a place in the center where you put the iPod.”
“What did you do next?”
“My partner and I began a sweep of the apartment.”
“Did you turn off the iPod?”
“Not at that time. We wanted to keep the element of surprise if anyone was in the apartment who shouldn’t be.”
“What did you find during your sweep?”
“In the kitchen I found a male Caucasian in a chair at the kitchen table. His head was slumped over the back of the chair. He appeared to have been shot through the mouth. There was blood on the wall behind him, and a gun on the floor by his right hand.”
“What did you do next?”
“I checked with my partner and supervisor, who determined there was no one else in the apartment. Then I unplugged the iPod dock from the wall to stop the music. I didn’t want to touch anything. My partner called for an ambulance, and Sergeant Leon and I secured the scene and began to canvass for witnesses. I believe Sergeant Leon called for backup and a detective.”
“Did you interview anyone at the scene?”
“Yes, I did.”
“Who did you interview?”
“May I refer to my report?” Officer Baron asked.
“Certainly.”
As he leafed through his pages, I leafed through my Motion Manual, a guide to procedure at prelims, because I knew what was coming. Hearsay. There’s a statute allowing hearsay from a qualified officer at a prelim. That’s the section I looked up.
“I have it,” Baron said. “I first interviewed a Ruth Marion. She lives in the apartment across the hall from the subject, who we had identified as one Carl Richess.”
“Can you give us the substance of the—”
“Objection,” I said. I stood up, holding open the Motion Manual.
“On what grounds?” the judge said.
“Inadmissible hearsay,” I said.
Radavich snorted. Actually snorted. “Your Honor, counsel is perhaps unfamiliar with the code on this point. Officer hearsay is admissible.”
Prakash looked at me, as if expecting me to melt into a little ball.
“Your Honor,” I said, “I believe Mr. Radavich is referring to Penal Code 872(b).”
“Of course I am,” he said.
“Then may I be permitted to take this witness on voir dire?”
“To what possible purpose, Mr. Buchanan?” the judge asked.
“If you’ll allow me just two questions?”
He thought a moment, then nodded.
“Officer Baron,” I said, “you are a patrol officer–two, correct?”
“Yes.”
“And when Mr. Radavich was qualifying you on direct, you stated that you had been with the Los Angeles Police Department for four years?”
“That’s right.”
“That’s two questions, Mr. Buchanan,” Judge Prakash said.
“Got me, Judge. Can I have one more?”
Prakash smiled. “I’m in a giving mood.”
“Officer Baron, have you ever been told how to testify at a preliminary hearing?”
He answered a bit too fast. “No.”
“Never been trained in preliminary hearing testimony?”
“Just normal talking to the prosecutor.”
“Officer Baron, have you ever completed a training course certified by the Commission on Peace Officer Standards and Training?”
“Yes, at the Academy I completed numerous POST courses.”
“But not one in testifying at preliminary hearings.”
“No.”
I looked to the judge. “Your Honor, PC 872(b) allows officer hearsay testimony only if the officer has been on the force for five years, or has completed a POST course specifically dealing with testifying at preliminary hearings. As this officer has only four years’ experience, and has not completed the required course, the hearsay testimony is inadmissible.”
“No way.” Radavich was on his feet. “Judge, he’s an officer with an impeccable record.”
Prakash tapped at his keyboard, then looked at his computer monitor. “Well, there it is, right there,” he said. “Penal Code section 872(b). Mr. Buchanan is absolutely right.”
Radavich turned his reddening face my way.
“Scary, isn’t it?” I said to him.
Prakash said, “I’m going to exclude all hearsay testimony from this witness, Mr. Radavich. Have you any further questions for him?”
“Not at this time.” He was silent as he lowered himself into his chair.
It was my turn to go into cross. The prosecutor only plays a minimal hand at the prelim. You do what you can with it, hoping to preserve something useful for trial. Now that a major portion of Baron’s testimony was being excluded by the judge, I had only one area to cover.
“Officer, inside the apartment, you did not see anything that would suggest foul play, did you?”
“Yes, I did. The dead man.”
The judge smiled at that. I was not in a smiling mood. “The gunshot could have been self-inflicted, could it not?”
“I was not asking myself those questions.”
“Never occurred to you?”
“No.”
“That part of your training, not to ask questions?”
“No, sir.”
“Then I have no further questions myself.”
69
RADAVICH CALLED A forensic expert from the LAPD lab, a Dr. Freeman Jenks. Unkempt, thinning gray hair over birdlike features. Like he was a giant crane carrying a small nest on his head. I knew exactly why he was going to testify, so before he was sworn I objected.
“Your Honor,” I said, “I would like an offer of proof on the relevance of this witness.”
Judge Prakash nodded. “Mr. Radavich?”
The prosecutor said, “He will be testifying about the blood found on the murder weapon.”
“Seems relevant to me,” Judge Prakash said.
Jenks took the oath and stated his name for the record.
The prosecutor asked, “By whom are you employed, sir?”
“I’m a criminalist with the Los Angeles Police Department, Scientific Investigation Division, working out of the Hertzberg-Davis Center at Cal State L.A.”
“How long have you been so employed?”
“Seven years. Previous to that I was with the Los Angeles County Sheriff’s Department, for a period of ten years.”
Radavich picked up Carl’s gun from the counsel table. It had been tagged as an exhibit. “Showing you now the weapon used to kill Carl Richess, can you tell me if you conducted any tests?”
“I did.”
“And what did you find?”
Jenks opened up a notebook he’d brought to the stand. “I found a small amount of blood on the barrel of the gun, which I tested, and determined was O positive. This is the blood type of the victim, Carl Richess. I also found a trace amount of blood, a small dot if you will, on the butt of the gun, and the intersection of the slide area.”
“And by that, do you mean where the slide, when chambering a round in this semi-automatic pistol, comes back, at that intersection?”
“That’s right.”
“What was significant to you about that bloodstain?”
“Well, I thought it in an odd spot if the theory is suicide. I particularly wanted to test that, and the test came out O negative.”
“What is the defendant’s blood type?”
“According to the report, it’s O negative.”
“What portion of the population is O negative, sir?”
“A little under eight percent.”
“Has this sample been tested for DNA?”
“It has, and we are awaiting results.”
“Thank you. Nothing further.”
I stood and said, “Your Honor, to this point, the prosecution has not made any blood sample available, so that I can have my own expert analyze it. I would ask the court to direct Mr. Radavich to turn over all samples to us before we proceed any further.”
Radavich said, “Unfortunately, Your Honor, the sample we submitted for DNA analysis was too small to preserve.”
“Then I move that evidence not be admitted,” I said.
“On what grounds?” the judge said.
“On the grounds of reciprocity. How can I possibly challenge the validity of the sample?”
“Do you have any law you can cite me?”
I didn’t, because there wasn’t any. “It’s plain fairness,” I said. “And moral law transcends opinion.”
The judge blinked a couple of times. “What was that?”
“I was just talking about the overall spirit of the law,” I said.
Prakash said, “Be that as it may, and it seldom is, the law is that the prosecution may test and if it’s used up, that’s just the breaks.”
“Hardly seems sporting,” I said.
“Sporting is not a proper objection,” the judge said. “Which means, overruled.”
Eric’s blood on the gun. Terrific. Wonderful. A jury would love it. They think blood is the be-all and end-all of evidence.
It’s called the “CSI effect.” With all the TV shows that have a case wrapped up in an hour, because of advanced—and sometimes fictional—forensics, juries are primed to respond to things like blood and DNA evidence.
Prosecutors don’t like it, because juries are starting to think that without a slam-dunk match, there’s too much reasonable doubt.
But when you have do have a match, the defense has to find a way to limit the relevance.
I had to think of a way to limit this. Not much I could do, but when it was my turn to cross-examine, I asked the good doctor, “There is no way of telling how the sample got there, is there?”
“I believe it was when the gun was fired,” Jenks said.
“You don’t know that.”
“It seems most likely.”
“Seems. Believes. You do not know,do you?”
“There could be alternate explanations, but I would find them highly unlikely.”
I said, “No further questions,” and sat down.
70
RADAVICH’S FINAL WITNESS was Detective Lonnie Zebker. In clipped, professional style, Zebker summarized his investigation, questioning of witnesses and, finally, Eric himself.
Establishing, most importantly, that Eric could not prove that he was anywhere else at the time of the shooting.
I asked a few questions, to commit Zebker to a few facts, but made no dents in his story.
Radavich announced he was through, and submitted the matter to the judge.
I made the typical defense argument that there was not enough evidence to bind Eric over for trial. Judge Prakash made the typical ruling—yes there was.
I asked for a reduction in bail, and Prakash denied it.
Another turn of the wheel in the system. When next we met, it would be to pick a jury to decide the fate of Eric Richess.
71
I MET WITH Eric in the lockup, before they shipped him back to Twin Towers.
“You want to tell me about the blood now?” I said. “Or do you want to start by telling me why you didn’t tell me about the blood.”
“I didn’t think anything about it.”
“That’s quite a detail you didn’t think anything about. What happened?”
“It’s not like you think,” he said.
“Enlighten me, Eric. I really like to be enlightened.”
“It’s like this, honest. I got nicked on the webbing of my hand.” He held up his right hand to show me.
“Nicked by what?”
“The slide. On the gun.”
“So you did fire the gun. This is getting better by the second.”
“Yeah I did,” he said. “Only it was earlier that week. I went to a shooting range with Carl.”
I sat there trying to decide if Eric was telling the truth or being like a little boy who just keeps digging himself deeper and deeper into a hole.
“Can you prove this?” I said.
“Like with what?”
“A receipt or anything?”
“No way.”
“Where is this place?”
“La Cañada Flintridge.”
“Maybe somebody up there remembers you being there. What was the exact date?”
He thought about it. “Friday, I think.”
“Think harder.”
“Yeah. Friday.”
; “What date?”
“Right before Carl died.”
“Carl died on Friday the thirtieth. You telling me it was Friday the twenty-third? Is that what you’re saying?”
“Yeah. That’s right. That would have been it.”
“So it wasn’t earlier in the week. It was a whole week.”
“Yeah. Right.”
“Did you guys check in or anything? Can somebody there identify you?”
“I don’t know. It was Carl’s thing. He asked me to go with him.”
“Look, you two are big guys. There might be somebody who’ll remember that. Can you give me any details about what the guy who checked you in looked like?”
“It wasn’t a guy. It was a chick.”
“A woman checked you in?”
“Yeah. She had long, straight brown hair and tats on her arm, her right arm.”
“Could she have seen you?”
“I don’t know. I was wandering around looking at the shelves when Carl paid up.”
This was good. This was promising. This was a fact that could be checked, and go in the credibility column for Eric.
72
SISTER MARY WAS with Kate outside the courthouse. I explained about the bindover for trial, and Kate leaned against Sister Mary for support. I suggested that Sister Mary drive home with Kate, and that seemed good to both of them. I walked down to the county law library on First Street to do a little research.
I was heading up the steps when my cell went off.
“Buchanan,” I said.
“Zebker.”
“I didn’t do it.”
“Hilarious. Can you come down to the station?”
“What for?”
“Some questions.”
“Last time I was there you threw me in jail.”
“Not this time. I want your help.”
“On what?”
“A homicide.”
“Whose?”
“That guy, Morgan Barstler.”
“You’re kidding.”
“I don’t kid. They found his body next to a Dumpster behind the Egyptian Theatre. He had your card in his coat.”
73
ZEBKER MET ME in an interview room at Wilcox. He brought me coffee and gave me a few details about Barstler’s death, then said, “You talked to Barstler when everybody thought Carl Richess committed suicide. I’d like to get a few more details from you.”
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