Justice Returns (Ben Kincaid series Book 19)

by William Bernhardt

  I asked to meet with Judge Santino in chambers. I also asked that the court reporter be present. I wanted to make sure we had a record for the appeal court.

  “Your Honor, once again I must express my strenuous objection to the admission of this clearly prejudicial evidence.”

  “All my evidence has been prejudicial,” Thrillkill said dryly. “To your client’s freedom.”

  “This video is grossly prejudicial and not remotely relevant.”

  “It goes to motive,” Thrillkill replied.

  “Even if that’s vaguely true, the potential prejudice far outweighs the probative value.”

  Thrillkill just smiled. I’d like to pretend that was a sign that I had wowed him into silence with the force of my brilliant argumentation, but I suspected the truth was that he knew he’d already won.

  “I’m getting a distinct feeling of déjà vu here,” the judge said, straightening in his plush, black padded chair. “Which is a nice way of saying you’re wasting my time. I’ve already ruled, Mr. Kincaid. And I’ve left the door open for you to renew your motion if you hear something you believe to be inappropriate. But we both know this testimony is relevant. This is a woman actually soliciting a murder—”

  “She never says murder,” I said, making the fatal mistake of interrupting the judge.

  He didn’t like it, either. He heaved his shoulders and gave me a steely gaze. “Let’s let the jury decide what she meant, shall we?”

  “We don’t even know for certain who’s talking.”

  “Does it matter?” Thrillkill said with a shrug. “One female conspirator in the sack is much the same as another.”

  “That’s exactly the kind of piggish attitude—”

  The judge raised his hand, and this time I had the sense to stop. “The prosecutor has edited the video in a manner that I find acceptable. Nothing is included that doesn’t have to be there.”

  “You can tell they’re having sex.”

  “Granted.”

  “Kinky sex.”

  The judge arched his eyebrows. “Don’t be a prude, Kincaid. Just because it’s not missionary doesn’t make it kinky.”

  How old was this guy who just called me a prude? “We still haven’t dealt with the whole issue of where the video came from. Who recorded it?”

  “My understanding was that the investigating officers found it in his apartment.”

  “So they say,” I replied.

  “Do you have some reason to doubt it?”

  “We know he was under surveillance by the CIA. Probably the NSA.”

  “Why would they record someone having sex?” Thrillkill asked.

  “Now you’re in denial. Sex tapes used to be Hoover’s stock in trade.”

  He waved a dismissive hand. “That was a long time ago.”

  “I’ve heard people say the same thing about torture.”

  Thrillkill made a frowning face but didn’t bother replying. “Regardless of the provenance of the recording, there are no doubts about its authenticity.”

  I kept my mouth shut. I could see the judge becoming irritated, and the fact is there weren’t any doubts.

  “The edited video will be admitted,” the judge said. “You may make your objection or exception or offer of proof or whatever for the record, Mr. Kincaid. And then, could we please get on with this trial?”

  ***

  “Are you ready for this?” I asked Oz quietly, as we waited for the trial to resume.

  “How could I be ready for this? This is a grotesque invasion of privacy.”

  “They say you made the video.”

  “I didn’t. Why would I?”

  “I don’t know. Someone did. Was it Mina?” I assumed she was the woman on the video, though he had never confirmed that.

  “Why would she want to do that?”

  “I’m just saying that, since you two are in a relationship .

  “Actually, I broke that off.”

  Right. He’d alluded to that before. “Why?”

  “She deserves better.”

  There was something he wasn’t saying, something he didn’t want to say. But I didn’t know what it was. Which left us both in the worst possible situation.

  Thrillkill used one of the investigating officers, a new guy, Norman Koljack, to introduce the video. He testified to being part of the initial investigation of Oz’s apartment. About the same time Takei discovered the alleged explosives in the backyard shed, he purportedly found this digital recording on a cell phone in Oz’s desk.

  Like all good mix tapes, this one had a driving rhythm. Unfortunately, the rhythm was provided by an extremely squeaky bed frame. The production values were amateurish, somewhere between Pamela Anderson and Paris Hilton, but good enough to leave no doubt about what was happening. Or that Oz was the man in the video. The woman straddling him was seen only from the back of the head.

  Thrillkill cut close to the portion of the video that contained the dialogue he considered relevant. Could anyone be dense enough to believe Thrillkill was putting this video into evidence so they could hear the dialogue? After all, he could’ve extracted the audio portion. He wanted the jurors to see Oz having sex—and making a recording of it—because even in this more permissive age, that did not make anyone look good. It left them with an awkward, uncomfortable feeling, especially with him sitting right there in the room. Given the earlier evidence presented, the jurors couldn’t help but wonder if this was a prostitute, one of the helpless strays he supposedly smuggled over the border so that they could spend the rest of their lives in the sex trade. Luring them into a life of degradation and shame—and tapping them on the side.

  This had nearly nothing to do with the case—and it was the most damning evidence Thrillkill had put on yet.

  For some bizarre reason, I started thinking about the court reporter and pitying the task that now lay before her. She had to take down every word of this, but at the moment, there were few words. Mostly guttural grunting and passionate moans. Would she attempt to make a record? To capture the essence of the evidence? I glanced her way but mostly detected extreme embarrassment. The same expression I saw on the faces of most of the jurors. But I also noticed they weren’t looking away from the screen. We live in the gossip generation, where news has been supplanted by invasions of privacy.

  “Oh God. God, yeah. Yeah, baby, yeah. Aww, give it to me, Ozzy. Give it to me hard.”

  I made a point of not making eye contact with my client.

  The woman in the video pulled herself up, arching her back, whipping her jet-black hair behind her. Her fingertips were poised on his hips, lifting herself in rhythm, rocking in coordination with his thrusts.

  “Oh, yeah. Just like that. You’re so damn big. Just like that, baby!”

  Her cries rose in pitch, almost a chirping sound, while her head lolled backward. Oz was either the most fantastic lover in the history of the world—or she really wanted him to think that he was.

  And then they exploded, powerfully and simultaneously. If someone was faking, they were doing a damn good job of it.

  After the excitement faded, she collapsed on top of him. Her head fell to the right of his, and her hair covered most of her face, again leaving her impossible to identify.

  “God, baby, it’s so good with you.” Her voice was deep and breathless. “I don’t know what I’d do if . . . if this had to end.”

  “Then let’s not let it end,” Oz said, using actual words for the first time in the recording.

  “I won’t have any choice. I never do. Everyone else calls the shots, and people like me get pushed around.”

  “No one can push you around unless you let them. Stay here with me.”

  “I want to stay with you.” She wrapped her arms around him and hugged him tight. “But for how long? Nazir will never leave me alone.”

  What seemed like an interminable amount of time passed. Oz opened his eyes and stared straight ahead. “I’ll take care of Nazir,” he said.

&nb
sp; 45

  The reaction in the courtroom was subdued—what reaction could you expect in the aftermath of watching two people have sex? But I knew the video had made a powerful impact. Out the corner of my eye, I saw several reporters break for the back door. They had their lead, and they weren’t staying around for the color commentary. If anything, the squirming I’d observed in the jury box ended with the video. Now the jurors were left alone with their thoughts while the judge took a ten-minute recess.

  If there was any doubt that Oz had a motive to eliminate Nazir before—and there really wasn’t—there certainly was no doubt now.

  I felt my heart thumping in my chest. This was far from my first rodeo, but I’d never had a client subjected to anything like this level of humiliation before. A sex video, for God’s sake. When did courtrooms descend to this?

  I felt a hand touch down lightly on mine. “This isn’t over yet.”

  Christina. She didn’t have to ask what I was thinking. “I think it might be,” I said quietly, careful that Oz didn’t hear.

  “I’m not pretending this is good. But from an evidentiary standpoint, it’s cumulative. What has Thrillkill proved? That Oz had a motive to kill Nazir? We already knew that.”

  “He trashed Oz. Made him look like a pimp and a pervert.”

  “You’ll fix that when you put on your case.”

  “Not unless I put Oz on the stand.”

  She didn’t answer. Because she knew the truth as well as I did. That ship had sailed. No one else could defend him against charges of sex trafficking. The defense didn’t have the ability to recruit jailhouse snitches like prosecutors did.

  “I’m not sure what to do next,” I said quietly.

  “Take the high road. Repeatedly make the point that you are not indulging in smear tactics, irrelevancies, mudslinging, or rhetoric. You’re going to put on hard, relevant evidence.”

  “I’m not sure people know the difference anymore. Gossip is more entertaining than facts.”

  “Keep the faith. Most jurors take their job seriously.”

  “True.”

  “You see the older woman in the back row, the retired office manager? I’d give you five to one she’s going to end up being the jury foreman. She’s been paying close attention to everything Thrillkill has done. And she had a pursed-lips expression on her face when he started the sex video. I think she resents him lowering the trial to that level. She’ll be receptive when you take a more focused approach.”

  “Maybe.”

  “She will.” Chris squeezed my hand even tighter. “Remember, at the end of the day, the only real evidence against Oz is that he was found at the scene of the crime with a gun in his hand. Which doesn’t prove anything.”

  Right or wrong, she always knew how to bring me around. Get me out of the doldrums and back where I needed to be.

  As the judge reentered the courtroom, I flashed Oz a confident smile. “Don’t worry. We’re going to fix this.”

  He nodded. “I trust you, Ben.”

  I wished to God he hadn’t said that.

  The judge brought the court back into session. “Does the prosecution rest?”

  “Not quite yet,” Thrillkill said. “I’d like to recall a previous witness.”

  I rose to my feet. Something was rotten in the state of Denmark. “I’ve had no notice of this, Your Honor. Again.”

  Thrillkill acted as if I was the village idiot. “I don’t have to notify opposing counsel of my plans. The witness is on the list I submitted before trial.”

  The judge nodded. “But traditionally, you can call a witness once. If a new issue is raised during the defense case, you may call rebuttal witnesses, but this is not—”

  “Your Honor,” Thrillkill clarified, “we need to update some of the prior testimony. Not all the forensic tests had been completed when my witness testified earlier.”

  The judge rubbed his neck. “This is irregular.”

  “And you’ll recall,” Thrillkill continued, “that this case came to trial far more quickly than is standard practice. That was in large part because my esteemed opponent demanded a speedy trial.”

  I thought the Constitution did that, but whatever.

  The judge pondered. “I see no great harm, in any case. I’ll allow it.”

  “Objection,” I said, not quickly enough.

  “I’ve already ruled,” the judge replied. “Surely you wouldn’t want relevant forensic evidence kept from the jury?”

  The smirk on his face was perhaps the most prejudicial event in the trial to date, but there wasn’t a thing I could do about it.

  “The prosecution recalls Clarence Cooper.”

  Cooper shambled back to the witness stand, still wearing the white coat, still wearing the rimless glasses.

  Thrillkill launched right in. “Dr. Cooper, when you were on the stand earlier, you mentioned that your tests were not yet complete.”

  “That’s true,” he said, pushing his glasses up his nose.

  “Could you please tell us what tests specifically remained incomplete?”

  “I had not had a chance to complete my tests on both the gun found in the possession of the accused and the bullet that executed the victim, Agent Nazir.”

  “Can you explain why?” He glanced my way. “We don’t want anyone to think you were dilatory about your duties.”

  “We had considerable difficulty getting information from the Oklahoma State Bureau of Investigation. To be fair, it’s not all their fault. The passage of Senate Bill 1733 in 2012 left a lot of confusion. Basically, almost anyone can buy a gun in this state, and no registration is required, with a few exceptions. This of course makes it difficult for a federal agency to determine who owns a particular gun. Technically, you must pass a federal background check if you purchase from a dealer, but there are so many other ways to obtain guns that this becomes largely irrelevant. Short-barreled shotguns require a federal license, but other weapons do not. Those who can’t buy guns legally—felons, the mentally ill, drug addicts, minors, juvenile offenders—simply go to gun shows or pawnshops or buy off the Internet. We had assumed the gun found on the defendant was untraceable.” He paused. “And then we got lucky.”

  “What happened?” Thrillkill asked.

  “I put out all possible feelers, which is my standard operating procedure, not expecting to strike pay dirt. Then I got an unexpected hit. Why it took so long, I still don’t know.”

  “Can you explain the nature of this hit?”

  “Sure. As you know, Oklahoma is now an open and concealed carry state, meaning that you can conceal them, or you can carry handguns up to forty-five caliber in plain view. But open carry does require a permit.”

  “We appreciate the background information,” Thrillkill said, “but can you explain how this relates to the present case?”

  “The defendant applied for an open-carry permit. Three days before Mr. Nazir was shot.”

  Thrillkill’s eyebrows rose as if he were surprised by this tidbit. I was relatively sure he wasn’t.

  “Once you had this new information, did you take any further actions?”

  “Yes. This made it all the more important to know where the bullet that killed Mr. Nazir came from. Before, since the defendant claimed that wasn’t his gun—”

  “Objection,” I said, fast and loud. “The defendant has not said one word in this trial yet.”

  The judge nodded. “Sustained. Please refrain from putting words in the mouths of others.”

  “But—”

  “Or repeating things you may or may not have heard from third parties prior to trial.”

  “Yes, Your Honor.”

  “Did this permit application clarify the matter of ownership?” Thrillkill asked.

  “Yes. The defendant specifically claimed in writing that this handgun was his own. And requested permission to carry it in public.”

  “Was the permit granted?”

  “It was.”

  “So he could carry
the gun openly in public?”

  “Yes.”

  “Say, at a press conference at the state capitol building?”

  “There are a few restrictions to the open-carry law—sporting events, bars, schools, and government institutions. But as long as he didn’t go inside the capitol building, he could carry the gun.”

  “So once you knew the gun belonged to the defendant, and he’d applied for the right to carry it openly, what actions did you take?”

  “As I indicated before, given that the gun belonged to the defendant, I wanted to know whether the bullet that killed Mr. Nazir came from that gun. Before, that didn’t add much. Now it seemed critical.”

  I felt the short hairs on the back of my neck rising. There was only one direction this could be going. And it wasn’t good.

  “What did you do?”

  “The standard battery of ballistics tests. Basically, we fired a bullet from the gun he registered, and we compared the markings on it to the markings on the bullet that killed Agent Nazir.”

  “The result?”

  “Let me show you.” He pushed a button on his handheld remote, and an image appeared on the overhead screen. “A ninety-four percent perfect match—far more than necessary to establish that the bullet that killed Agent Nazir came from the gun owned and held by the defendant.”

  Lips parted in the jury box.

  “Thank you. No more questions.”

  The judge nodded. “Cross?”

  So many people were ducking out the back of the gallery I wondered who would be around to hear my cross. I wouldn’t get anywhere with Cooper, and I couldn’t think of a question that could help our situation. I would only give the witness opportunities to repeat his indisputable conclusions.

  “No cross.”

  “The prosecution rests,” Thrillkill said, restraining his smile. He’d closed out with a killer one-two punch, first making sure everyone in the jury box detested Oz, and then giving them more than adequate grounds for concluding that he shot Nazir. He hammered the nails into the coffin with finality and overwhelming force.

  “I have some motions to make,” I said. Despite the futility of asking for a directed verdict, I would. I’d ask the judge to rule that no reasonable jury could convict the defendant based on the evidence presented because as a matter of law it was insufficient to prove guilt, and the judge would try hard to deny the motion without laughing in my face. Thrillkill made his case. He established a strong link between the murder and the defendant.