Until Proven Innocent

by Gene Grossman

  There’s no way he can answer that question, because it’s impossible to tell the passage of time between firing of the shells without any formation of rust. This is another little link in my perfect frame scenario. When I ask him whether or not he can definitely testify if the empty shell casing he found in Tony’s gun had been fired at eight PM on the night of the murder, or at three that afternoon, he answers that he can not.

  On re-direct, the D.A. stresses the fact that Tony’s fingerprints were found on that empty shell, as well on the other four rounds in the cylinder. That’s when she springs the big question about any other fingerprints, and the tech responds that on the empty shell casing alone, there was another set of partial prints and that they appear to be from a child.

  That’s all the press has to hear. They knew it was coming, and this is the high point of the trial they were waiting for. There is conversation and buzzing throughout the whole large room. The judge bangs his gavel a few times and makes some empty threats about clearing everyone out, before order is finally restored.

  On re-cross, I simply wave that testimony aside by getting him to admit that it would have been more surprising not finding a gun owner’s prints on the ammunition in his own gun. As to the other set, I’m able to elicit testimony to the effect that just because there were some other person’s prints on the casing, there is no way he could tell when they got there or if they were placed there when the shell was put into the gun’s cylinder. He finally admits that some of Tony’s prints overlapped the child’s prints, so it’s likely that Tony handled the shell after the child did.

  Their next witness is the lab tech who processed all of the prints on the shell casing. He explains how fingerprints removed from items were matched to prints already on file. His display shows both sets of fingerprints and identifies the persons they belong to as the defendant and one Suzi Braunstien. There’s a little more whispering, but not enough to disturb the judge. I assume that it was about forty people all saying the same thing under their breath - something to the effect that the kid is related to me.

  After a short break so that the jury can stretch their legs, the judge lets us all know that he only expects the D.A. to put on two or three other witnesses and that they will probably rest their case some time shortly after we come back from lunch. In all the felony cases I’ve ever been involved with, I’ve never seen one go so fast. It’s the perfect case.

  *****

  It’s now time for them to establish Tony’s motive, so they bring in two witnesses. First Renaldo, who reluctantly testifies to the fact that Tony and Joe had argued quite a few times and in his opinion, they almost came to blows.

  On cross-examination I get Renaldo to admit that he’s argued with his girlfriend many times, in as heated a fashion as Tony and Joe did, but he never contemplated killing her. That neutralizes his testimony.

  Their last witness is a black activist who claims that there have been more complaints to him about Tony’s excessive use of force on black people then on any other policeman in his precinct. I don’t have any questions for him, because I think his testimony antagonized the jury more than it established Tony’s motive.

  They saved their best for the last. The judge looks down at the D.A. and makes way for their final witness. “Do the People intend on calling their last witness now? And if so, is it the one we discussed earlier today in chambers?”

  “Yes, Your Honor. With the Court’s permission, we would like to call her now.”

  “Just to cover all the bases Mister Sharp, do you have any objection you’d like to make for the record?”

  I stand up to give him my answer. “No Your Honor.” This lets the judge, jury, court reporter and the press know that this is okay with me. The judge feels that he should let the jurors in on the cast of characters now so that the record will reflect everyone’s informed consent to the witness appearing and the relationships involved.

  “Ladies and gentlemen of the jury, the People’s last witness will be called to the stand shortly, and I want to state for the record, the unique set of relationships in the courtroom today. This witness was the orphaned stepdaughter of an attorney who died in a plane crash not too long ago. Upon his death he left instructions that his close friend, neighbor and business associate should be appointed as the child’s legal guardian. This last wish of his was granted by another branch of this court. The witness being called is a young girl. Normally, we would insist on her having a parent or guardian present, but that’s not necessary in this situation, because her legal guardian is already here. He’s the defense attorney in this case, Mister Peter Sharp.

  “And, for a complete disclosure of all the pertinent facts, you should be aware that Mister Sharp is the former husband of Myra Scot, this prosecutor’s boss, the District Attorney of our County, who is also a close friend of the witness, and who I see has just entered the courtroom and is sitting in the back row. Good afternoon, Miss District Attorney.” Myra nods back to the judge.

  This announcement probably isn’t news to anyone but the jurors, but there’s still quite a bit of whispering going on in the gallery. The judge knows that this is a singly unique situation, so he gives the whisperers a chance to finish and then gives the D.A. a nod that it’s okay to go ahead. Witnesses in criminal cases are not allowed to sit in the courtroom during a trial. This is so that they don’t have an opportunity to hear what other witnesses have testified to. Witnesses who have not yet been called are either seated in some nearby waiting room or must wait outside in the hall.

  The prosecutor stands up and calls Suzi Braunstien to the stand. At this point, the rear door to the courtroom is held open, and the little brat princess, who had been waiting outside in the hall slowly starts her long walk to the witness stand. When everyone sees that doll-face of hers, a chorus of oohs and aahs can be heard, similar to the sound a movie audience makes when they see some adorable puppies on the screen.

  The kid knows what’s going on, so she takes her sweet time getting to the swinging gate that leads to the counsel tables area. A bailiff was stationed at the gate, and he opens it for her so that she can easily walk through. At this point, I’m wondering why she didn’t tuck a little teddy bear under her arm for a bigger emotional affect.

  As she slowly walks through the gate, she does something that completely astounds me while at the same time informs me that she’s choreographed her appearance today, down to every movement she makes. She walks over and plants a kiss on my cheek. At the same time she’s kissing me, I feel her press a folded sheet of paper into my hand. I can’t stop to look at it now. She then takes the witness stand. I don’t know if the audience can notice it, but everything from my neck up feels like it’s on fire. I hope that Court TV has a color camera working here today, because I’m probably now a glowing red.

  This portion of her act draws more oohs and aahs from the crowd. I look back to see if I can catch Myra’s eye, and I do. She is looking at me, and from our exchange of knowing glances, I realize we both appreciate the fact that the kid is playing this packed courtroom like a pinball machine. I have no doubt that in less than five minutes, the kid will have every person in this courtroom wrapped around her little finger.

  I was wrong. It didn’t take five minutes. When she sat down in the witness chair, she looked up at the judge and gave him an innocent smile. He smiled back at her. Mission accomplished, and it took less than a minute. I hope she realizes that as an adult attorney someday, she’ll have to change her act.

  Every witness who takes the stand in any kind of hearing is usually sworn in by the Court Reporter, at which time they are expected to raise their right hand and swear to God that they will ‘tell the truth, the whole truth, and nothing but the truth.’ In this particular case, the judge, already having been wrapped around the kid’s finger, has decided to take on this task himself.

  He looks down at her and starts to explain how important it is to tell the truth, and not to lie when asked a question. Little doe
s he know that the person he’s talking down to has an IQ much higher than his own, and thinks he’s some kind of ignorant jerk who’s wasting her time. She goes along with the act and promises him that she’ll be truthful to all of the grown-ups who will be questioning her. He nods at the D.A., letting her know that it’s okay for her to start her questioning. She stands up and begins the questioning, following instructions she received from the judge in chambers, she is extremely courteous to the kid. We decided that it would be best to address this witness as ‘Suzi.’

  “Suzi, I’m the deputy district attorney here today, and I work for your friend Myra. She wants me to ask you a few questions about a bullet. Is that okay with you?”

  The kid innocently nods affirmatively. She knows damn well that she’s supposed to say ‘yes,’ because the court reporter needs her words for the record, but she’s obviously doing this so that the judge will talk to her. He jumps at the opportunity to let the huge television viewing audience see what a sweetheart he can be with this small frightened child on his witness stand.

  “Suzi honey, you’re going to have to say yes or no out loud. The court reporter hasn’t learned how to take nods for an answer.” The court reporter doesn’t look too happy about that remark, but takes it down anyway.

  Suzi nods, and then lets out an almost imperceptible “yes,” at which time the judge shouts at the bailiff to hurry up and turn on the witness microphone. The microphone is turned on and the judge asks her to repeat her answer, which she does. The judge doesn’t realize that as of this moment he is no longer in control of the courtroom. It belongs to the kid. She’s totally running this show and he’s just along for the ride, along with the rest of us.

  I’m pretty sure that every eye in the courtroom, including the television camera’s lens, is focused entirely on the kid and probably will stay that way every minute that she’s on the witness stand. This gives me an opportunity to unfold the sheet of paper she handed me and see what it is. I look to my side and see that Tony is taking everything in, including the paper that the kid passed to me.

  Once I discreetly lift it up to the counsel table, I slip it into a stack of papers in front of me and then search for it, just in case anyone’s actually watching me, which I doubt. The sheet now looks like something I brought into court with me, like all my other papers. I take a look at it and see that it is a list of questions to ask two witnesses: her and Tony.

  The D.A. is now asking Suzi some questions to find out if she knows what a fingerprint is. Little does she know that this witness has a more sophisticated fingerprint analysis capability in her bedroom that the District Attorney’s entire scientific investigations department has.

  After the D.A. has finished her ‘Dick and Jane’ explanation of fingerprints, she brings out an evidence exhibit to show the kid. It’s the expended shell casing.

  Many years ago when I was growing up in Chicago, I liked to play pool and billiards, and the best place to do that was downtown at a place called Bensinger’s. They had about five floors of pocket pool, billiards, and snooker tables there, and every hustler in town had his favorite table, where he would make a decent living off of sailors and other tourists who thought they were pretty good players.

  One of the most successful hustlers there had what we called a ‘drunk act,’ during which this old man would practice on a table by himself and miss quite a few shots, while loudly proclaiming he can beat anyone in the place. It worked well for him, because there would always be some young kid like me around who was the best player in his neighborhood poolroom and figured it’s about time someone taught that loud old drunk a lesson in how the game should be played.

  To make it a little more interesting, the old drunk would suggest that they put a couple of bucks on the game, to which the challenger always agree. They would start playing and the old man would always lose the first two games. He would then loudly demand a chance to get even by playing for ‘double or nothing,’ and the challenger would be shamed into giving him the chance. Again, the old man would lose, but by a much closer margin than the first three games. Finally, he would spring the trap and demand one final game to prove that he’s the best. After insulting his young challenger repeatedly, by this time the tourist had no sympathy for the old drunk, so he would agree to play the one last game and increase the amount of the bet.

  At this time the old drunk would insist that a third party hold the bet money, and each would hand over whatever the stakes had reached to the cashier of the place. Sometimes the bet for that last game would be several hundred dollars. There was also a lot of side betting going on, between the regulars and the tourist’s friends.

  Amazingly, as the game progressed, the old drunk seemed to suffer less from the influence of alcohol, and actually looked like he was sobering up a bit. The end was actually pre-determined, because the tourist never had a chance. The old drunk would always win by just a point or two, so that the disappointed tourist would blame it on ‘luck.’ But nevertheless, he lost.

  It’s been many years since I’ve seen a good hustler work at Bensinger’s, but what the kid is doing to this courtroom reminds me of the old drunk. She has nothing to sober up from, but the routine she’s pulling is similar. She started out as an intimidated little waif who couldn’t even speak loud enough to be heard without a microphone. I’ve got a feeling that in a little while when the stakes get raised, her testimonial age will increase to that of an adult.

  The D.A. shows the expended shell casing to Suzi and asks her if she recognizes it. Suzi’s age goes up a year or two with this answer. “Yes, that’s a .50 caliber shell casing, like the kind my friend Tony uses in his gun.” This not only shows how smart she is, but also tells the jury that this big muscular cop, who is accused of murder, is friendly with this adorable little witness. It also acts like a non-verbal, favorable, character witness statement.

  She is then asked whether or not she put that casing into Tony’s gun. “Oh, no, I never load his gun.”

  The prosecutor is trying to establish that this shell casing was handled by Suzi and then by Tony, and that they were the only ones who had access to it. If Suzi didn’t put it into Tony’s gun then Tony must have done it himself.

  Several years ago, there was a trial in Los Angeles in which a well-known football player named O.J. Simpson was charged with murder. At one point in the trial, one of the prosecutors made what turned out to be a fatal mistake when he asked the defendant to put on a glove that was supposed to have been worn by the murderer. The D.A. wanted to show that it fit the defendant ‘like a glove.’ For those of us who are courtroom history buffs, we all know how badly that experiment went.

  In this case, the prosecutor has just made her fatal mistake, and she’s about to pay the price for it. She wants to get the kid to admit that Tony must have put that bullet in his own gun. The D.A. must think that being an average kid, there is a fear that she might be getting blamed for doing something that she didn’t do. A normal kid would immediately try to point the finger of suspicion in another direction, and this D.A. hopes that the kid will finger Tony as the one who did the loading. Boy, did she misjudge this witness. The kid was several steps ahead of her before she even walked into the courtroom… and here it comes.

  “Suzi, if you didn’t put this bullet casing into the defendant’s gun, do you think it was put in by someone else?”

  Suzi hesitates before answering. I’m sure the little ham is doing it for effect, to bring the courtroom to complete silence. She finally answers quite clearly, and the microphone is not necessary when she gives her answer. “Yes, earlier that day.”

  In all the years I’ve been practicing, I’ve never heard silence like this one. Pens stop writing and people stop fidgeting. There is no coughing. There is no movement. Everyone is frozen in place, listening for the rest of the kid’s answer. She looks at the prosecutor and states with certain conviction “Yes, I know who put this shell casing in Tony’s gun, but it wasn’t Tony.”

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nbsp; The silence ends with a bang. There’s bedlam in the courtroom, and no matter how much the judge bangs his gavel down, it doesn’t stop. The prosecutor is completely flummoxed, and starts to desperately go through the maze of paperwork on the counsel table in front of her. Myra sees the disaster that just happened and comes up to assist her trial deputy, as they re-group to go on with their questioning.

  When the noise subsides, Myra stands up and addresses the court. “Your Honor, with the Court’s permission, I would like to step in and assist in this matter by continuing to question the witness.”

  The judge waves his hand to Myra, as if to say ‘be my guest.’ She thanks him and asks the witness another question.

  “Suzi, you’ve just told us all that you think this shell casing was put into the Defendant’s gun earlier in the day. How can you possibly know that?”

  I’m sorry to see Myra jump into the hole that the kid dug for her trial deputy. The Law of Holes states that ‘when you’re in a hole, stop digging.’ Not only does Myra completely ignore the rule, she asks for a bigger shovel. The kid waits a few seconds before answering. I can see that once again she’s playing the room for effect. She finally gives her answer.

  “Because it’s not a factory round. It’s a re-load, and Tony never uses re-loads anywhere but at the target range. All the other times he keeps the gun loaded with factory rounds.”

  The audience doesn’t know it, but the kid has long ago passed through the little girl part of her act and is now rapidly approaching adult expert witness status. Myra’s in a tough spot now, like a person who’s hanging on to a mooring rope attached to a blimp. When the blimp gets blown away by the wind, a quick decision must be made to let go of the rope and drop to the ground, because if you don’t do it in time, you’re lifted up into the air and have to hang on for dear life. Myra’s hanging on for dear life now, and the kid knows it. Myra goes ahead.