He had, of course, chosen the phrase “federal employees” because, technically speaking, the magistrate was also a federal employee.
“The point is the defendant found a lawsuit insufficient to satisfy his raging hatred. He had motive, plus means—the gun found in his possession—and opportunity, because he was apprehended at the scene of the crime.”
The magistrate parted his lips as if to speak, but Thrillkill cut him off. “And may I just say with my remaining ten seconds”—apparently, his watch ran slower than mine—“that the evidence will show that the defendant is still associated with known terrorist organizations. He is a person of interest and a dangerous individual.” I assume he planted that notion just in case the magistrate later considered the possibility of bail.
“Thank you, Mr. Thrillkill. Mr. Kincaid, would you like to make any remarks at this time?”
As if that were in question. “Yes, sir. Thank you.” I rose but I did not leave the table. I wanted to stand near Oz. I wanted the magistrate to be forced to look at him, to see that I was friendly with him, that I trusted him. And that he was totally Caucasian. Thrillkill wanted to make Oz look like the Great Satan, but I wanted the magistrate to see that he was basically a white boy from Nichols Hills, caught up in a whole mess of trouble.
“Let me begin by defining a few terms, Your Honor. My client was not simply questioned. He was tortured. For twenty-one days. By practices denounced by Amnesty International and virtually every civilized first-world nation on earth.”
I had to tread carefully here. I wanted to make my client sympathetic, but not to generate grist for the prosecution’s revenge motive.
“So I would agree that he had grounds for enmity toward Mr. Nazir, but that is hardly proof that he killed the man. He had filed a civil action and was prepared to deal with his grievance in a legally acceptable manner. The government continued to persecute him, to stalk him and his loved ones, and to engage in all manner of harassment. My own office was ransacked. I don’t know if that was to intimidate or if they were searching for information. But I know someone is after my client. And I know that even if he were to resort to murder—which he would never do—he wouldn’t be stupid enough to do it in a crowd or to hold on to the gun while he attempted to flee. My client was framed, probably to cover the fact that his initial detention was unlawful, which the civil action would prove.”
The magistrate nodded. Thrillkill had a smirking expression on his face, but there was nothing new about that. Prosecutors always acted as if they were certain they’d caught the right guy, even when they weren’t, and they always acted as if everything the defense attorney said was a crock.
I did the best I could with what I had. But I’m sure the magistrate noted what I hadn’t addressed. Someone did in fact shoot Nazir. If it wasn’t Oz—who was it? And why did no one see it happen?
22
I kept my eyes on Magistrate Hamilton, but he did a keenly professional job of maintaining a disinterested expression. I wondered if he was a poker player.
“Mr. Thrillkill, you must demonstrate sufficient grounds for the defendant to be bound over for trial. Would you like to call your first witness?”
Thrillkill rose. “I would. The United States calls Dennis Benedict.”
Benedict was a forensics expert who’d worked in the crime lab since before I was a lawyer. His shock of white hair lent him authority, as did the rimless glasses I’d noticed he only wore when he was on the witness stand. The main thrust of his testimony was that he found Oz’s prints on the gun that killed Nazir. None of this was a news flash. The gun was found in Oz’s hand, so of course it bore his prints. Benedict was an expert in both ballistics and dactylology, so I wouldn’t get anywhere questioning his expertise.
I still took a moment to cross-examine. Not enough to irritate the magistrate. Just enough to show that I paid attention and, perhaps, to raise a few nagging unknowns.
“Did you find any other latents on the gun?”
“Some partials,” Benedict replied. “Nothing traceable.”
“So someone else might have held the gun before my client did?”
“I can guarantee someone else held it before he did. But that’s almost always the case. A gun passes through many hands before it’s bought. Manufacturers, distributors, dealers. Those prints fade with time.”
“Could someone else have held the gun on the day of the murder?”
“I can’t rule out the possibility. But Omar al-Jabbar held the gun last.”
The next witness was one of Benedict’s associates, Carmen Centrillo. At first, I thought this testimony would be redundant. Then Centrillo laid down the kicker.
“After his arrest, I tested the defendant’s hands for gun residue.”
Thrillkill nodded. “And what did you find?”
“The defendant had fired a gun. Recently.”
That was a problem. One thing to hold a gun—quite another to fire it.
I leaned across to Oz and whispered. “True?”
“I’d been to a firing range the night before. It’s a hobby.”
Great. I knew just how credible that would sound on the stand. My innocent client coincidentally fired a gun for fun a few hours before the murder. “But you didn’t have a gun at the press conference, right?”
“Concealed carry is legal in Oklahoma.”
Like I didn’t know that. It’s what gives you the creepy feeling every time you see a family of rednecks sit down next to you at Chili’s.
“Surely by now you realize that people are out to get me,” Oz said. “After we filed that lawsuit, it could only get worse. Which it did.” He paused. “I expected an assassin. Instead, they used a far subtler means of extinguishing me.”
Paranoid rant or God’s own truth? I had no idea.
Armed with that completely unhelpful and vaguely credible information, I started the cross-examination. “Can you say with certainty that the defendant fired a gun within an hour of his arrest?” Like any good cross-examiner, I only asked because I knew the answer.
“No. But he fired recently.”
“Is it possible he fired a gun the night before?”
Centrillo shrugged. “Anything’s possible.”
“Is it possible he fired a different weapon?”
“I can’t identify the weapon from residue.”
“So he might have been practice shooting the night before. Or quail hunting.”
“That’s not for me to say. But he did fire a gun.”
“But you can’t say when or what gun or what he shot at.”
“True.”
That was as good as it was going to get with this government-payroll witness, so I let it rest.
“Next witness,” the magistrate grunted.
“The United States calls Officer Marcus Takei.”
I knew Takei was one of the officers who searched Oz’s apartment after he was arrested. I did not know why Thrillkill wanted to put him on the witness stand. And that bothered me.
Thrillkill took the witness through the obvious preliminaries, establishing that he was an investigating officer with seven years of experience. He was not at the press conference but was called in soon after to search the apartment. He appeared to have followed all the proper procedures before, during, and after entering.
“How would you describe the state of the apartment when you entered?” Thrillkill asked.
“It was a mess.”
“Signs of a struggle?”
“No, more like signs of someone leaving in a hurry. And never planning to come back.”
“Objection,” I said, rising to my feet. “That’s conjecture.”
“It is,” the magistrate replied, “but this is a preliminary hearing, and the evidentiary standards are more permissive than they might be at trial. Overruled.”
In other words, sit down and shut up. Objections weren’t going to get me anywhere here. Either Thrillkill had the goods to bind this man over for trial or he didn’t.
“
Describe what you saw on the defendant’s desk.”
“A lot of paper. Manila folders stacked two feet high. Political pamphlets and brochures and flyers. A lot of propaganda for some Muslim outfit called JUSTICE IRAQ.”
It was political, not “Muslim,” but I understand the prejudice Thrillkill wanted to create. Takei himself was Asian. Did he mind being part of this racial smear? I was more concerned about why Oz might have JUSTICE IRAQ materials. That was supposedly Mina’s outfit, not his.
“Did any of those file folders catch your eye?”
Takei nodded. “The thickest one, on the top of the stack, was labeled NAZIR.”
Thrillkill passed a spreadsheet—what arrogant lawyers like to call a “matrix”—to me and then the bailiff, who passed it to the magistrate. “This is an itemization of the documents contained within the file labeled NAZIR. Even at a casual glance, I think the court can grasp the general content.”
I could, too. The spreadsheet had three columns. One contained an identifying Bates stamp number, one identified the document by title and date, and the last contained a somewhat argumentative description of the actual contents.
Most of the documents concerned Nazir’s interrogation of Oz. A few concerned Mina’s and other similar interrogations. There were fourteen Freedom of Information Act requests that produced a collection of heavily redacted documents. Thrillkill made a point of showing that Oz had personal information about Nazir, including where he lived, where he worked, and where he went on the weekends.
He seemed obsessed with his former interrogator.
Thrillkill passed another document to Officer Takei. “Can you identify this?”
“Yes. This is one of many memos I found.”
I could see out the corner of my eye that this disturbed Oz more than anything he’d heard thus far.
“Would you please read the portion of the document that I’ve highlighted in yellow?”
Takei cleared his throat. “‘The day of reckoning approaches. We must take action to make the world aware of these injustices. They must be exposed as the murderers and torturers that they are.’”
I didn’t bother asking Oz if he wrote that. It sounded very like what I’d heard Mina say in my office.
“Did you search the bathroom?”
“Yes.”
“Find anything of interest?”
“Yes. Narcotics.”
I snapped to attention.
“What kind of narcotics?”
“Large quantities of OxyContin. Which I’m sure you know is essentially a form of synthetic heroin.”
“Tell the court what you mean by large quantities.”
“There were three different bottles of the stuff from three different doctors. That suggests he was going to multiple doctors to score more drugs. And one of the bottles held more pills than the prescribed amount on the label. That suggests that he was getting some from the black market.”
I rose to my feet, but before I could mutter the first syllable, the magistrate waved me down. “You’ll have a chance to cross-examine, Counsel.”
Fine. I’d skip the useless objection and wait for a chance to show the speculation for what it was.
I scribbled a note to Oz on my legal pad and slid it across the table: WHAT’S WITH THE PILLS?
He scribbled back in a near-perfect cursive: I’VE BEEN UNDER A LOT OF STRESS.
THREE BOTTLES?
I HAVE A PROBLEM. I’M DEALING WITH IT.
Well, jail would help with that. I had to focus on the witness.
This development had nothing to do with the murder. But it didn’t look good. If Thrillkill wanted to be a real horse’s ass, he would use it as the basis for another charge, even though that seemed unnecessary when Oz already faced the ultimate sanction. At the very least, Thrillkill could use it for press conference grist.
“One more thing.” Thrillkill paused a moment, savoring the moment. “Did you search the storage shed in the back?”
The short hairs on the back of my neck bristled. Storage shed?
“I did,” Takei replied.
“Find anything of interest?”
“Yes. Explosives.”
My heart skipped a beat. Even though the gallery was mostly filled with reporters, there was an audible buzz when he said the word “explosives.” Because in the minds of most people around here, “explosives” means “terrorists.”
“What kind of explosives?”
Takei shrugged. “Gunpowder. Fertilizer. Some electronic equipment. Detonation devices.”
“Thank you. No more questions.”
I leaned toward my client. I knew the magistrate would give me a few moments to consult before crossing, and if I did it quietly, it wouldn’t look as if I’d been shell-shocked.
“Explosives?” I whispered.
“Fireworks,” he replied.
“Why would you have fireworks?”
“Because I’m an American. I celebrate Independence Day. I take them out to the country. I don’t break any laws. The fertilizer isn’t even mine. I think the building superintendent stores that there.”
“And the electronics?”
“I don’t know what he’s talking about. I noticed some old beaten-up computers out there. Some people are hoarders. They can’t stand to part with anything, no matter how old or useless.”
This case just gets better and better, I thought, as I pushed myself to my feet, once again tilting at windmills and unraveling Gordian knots of impenetrable strength.
23
Cross-examining police officers, and for that matter almost all government witnesses, requires a delicate balancing act. Despite the cliché, most lawyers of my generation do not try to make law enforcement officers look like imbeciles. Most jurors have generally positive attitudes toward law enforcement, never more so than since 9/11. Judges don’t like it when lawyers are disrespectful to people who put their lives on the line for the commonwealth, and you do not want to anger the judge. At least not without good cause. The courtroom is the judge’s playground, and if he or she wants the trial to go against you, it probably will.
I had to treat Officer Takei with kid gloves. While simultaneously ripping his throat out.
I decided to leave the Nazir file alone. We couldn’t possibly deny that Oz was obsessed with Nazir. Furthermore, Thrillkill’s reminders that Nazir had tortured Oz for weeks could conceivably work in our favor. So I went straight to the pills.
“Officer, do you have a medical degree?”
He rolled his eyes. “I wouldn’t be here if I did.”
“You’re not qualified to say whether these prescriptions were necessary, are you?”
“I didn’t attempt to say anything like that. But I thought having three prescriptions for the same drug was unusual.”
“Do you know why those drugs were prescribed?”
“No.”
“So again, you’re not in a position to say whether the prescriptions were necessary, are you?”
“No. But I thought it was unusual.”
He wasn’t budging. “You can’t even say it was unusual, can you? Since you don’t know what ailment was being treated?”
“I can say that on several occasions I’ve seen people exhibit violent behavior while under the influence of opioids. And that includes firing a gun in a crowded area.”
Score one for the home team. “You also opined that the defendant obtained drugs on the black market. Meaning illegally. From pushers.”
“Or perhaps overseas pharmacies.”
“But you have no evidence of that, do you?”
“I saw an excessive number of pills in the bottle.”
“Have you ever considered the possibility that he transferred pills from one bottle to another? Consolidated? People do that sometimes, don’t they?”
“So you’re saying there was a fourth bottle of OxyContin somewhere?”
This guy was good. He’d be looking at a nice bonus check this month, I suspected. “What I
’m saying is, at this time, you have no actual evidence that the defendant purchased black market narcotics, do you?”
“Not at this time.” Takei was smart enough to know when to let it go.
“But we’re still investigating,” Thrillkill mumbled, just loud enough to be heard.
The magistrate nodded.
“Now let’s discuss the so-called explosives. Isn’t it true that what you found was in fact fireworks?”
“Fireworks contain gunpowder. They can be and have been used to make dangerous devices.”
“Did you find any dangerous devices?”
“I found the raw materials.”
“You found fireworks designed to make pretty displays in the sky. But you found no bombs. Right?”
“I also found large quantities of fertilizer. As an Oklahoman, I would think you’re aware that fertilizer can be used to make powerful explosive devices.”
A reference to the Murrah Building bombing. “Did you find a fertilizer bomb?”
“As I testified, I found the raw materials.”
“Do you know who put fertilizer in the storage shed?”
“I know the defendant had access to the storage shed.”
“Motion to strike. Officer Takei, please listen to my questions carefully and answer them. Do you know who put fertilizer in the storage shed?”
“No.”
“Is it possible the fertilizer was going to be used . . . as fertilizer?”
“I hope so. But given the tenor of those memos—”
“Officer, answer the question.”
“I suppose it’s possible.” Pause. “Though the lawn didn’t look like it was getting much love.”
I let that pass. It wasn’t going to matter. “And finally let’s discuss the so-called electronics and detonation devices. What did you actually find?”
“Several computer motherboards. Some smartphones. Which could be used to detonate an explosive device remotely.”
“You found a lot of discarded trash, but you found no bomb, right?”
“My testimony was that I found ingredients that could be made into a bomb. I hope we don’t have to wait until the bomb explodes before we can do something about it.”
“And I hope you never go into my garage,” I replied. “Because I suspect you could find the raw ingredients for a bomb in anyone’s home. Or garage sale. Or Wal-Mart.” I looked up. “No more questions, Your Honor.”
Justice Returns (Ben Kincaid series Book 19) Page 12