“Once you have heard this testimony and reviewed the overwhelming evidence against the defendant, it is my confident expectation—and the expectation of the people of Monroe County and the state—that you will find the defendant guilty beyond any reasonable doubt of the charge against him. Such a finding will send a clear message to the public that will help deter others from violating the State Water Resources Protection Act, and you will have performed a valuable public duty in sending that message.” With a final bob of his head, Danning thanked the jury and returned to his seat.
“Your turn Mr. Calloway,” Judge Winship said.
Placing a reassuring hand on my client’s shoulder, I got to my feet and headed for the jury box. This was a little ritual I followed in every case, trying to convey to the jury my absolute confidence that my client was a wonderful person and completely innocent of any charges, although some of my clients were people I could hardly bear to touch.
I halted in front of the box and let my eyes range up and down both rows of jurors, trying to make eye contact with each of them. This was another part of the ritual, designed to assure them that the guy looking at them was indeed another human being. What I would not do is tell them I worked for the public defender’s office. I’d discovered long ago it wasn’t a good idea to let jurors know their tax dollars were paying my salary while I defended low-life scumbags.
Assuming what I hoped appeared to be a relaxed posture, I bade them good morning. “My name is Henry Calloway and I am privileged to represent Mr. Garrett Vernon,” I began. “Yes, he does have a name, even though the prosecutor, Mr. Danning, refers to him as ‘the defendant.’ He does that in an effort to dehumanize Mr. Vernon, but I can assure you that Garrett Vernon is very much a human being, that he understands he is on trial here for his liberty, and he’s worried and frightened, as any of you would be in his situation.
“Mr. Vernon is charged with violating the state’s Water Resources Protection Act. If you read that law you will see that it prohibits virtually all forms of recreation in order to protect state-owned water resources from pollution or diversion. You will hear testimony that Mr. Vernon did absolutely nothing either to pollute or divert the waters of Youngstown Lake. Essentially he is accused of fishing where he wasn’t supposed to, which hardly makes him Public Enemy Number One. Considering the trivial nature of the charge, this is a case that never should have been brought to court. It could have been handled as easily as a traffic ticket. But because Mr. Vernon had the bad luck to be the first person charged under the Water Resources Protection Act, the prosecution wants to make an example of him. They want to send him to prison for five years and fine him $10,000, the maximum sentence under the new law. Make no mistake, ladies and gentlemen, that’s the only reason we are here.
“We do not contest the prosecutor’s contention that Mr. Vernon was fishing at Youngstown Lake on the evening of May 19, but he has entered a plea of not guilty by reason of temporary insanity. This means that even if he knew the lake was closed to fishing, Mr. Vernon was in a psychotic state that made it impossible for him to resist the impulse to go fishing.
“You will hear testimony that at the time of the alleged offense, Mr. Vernon was under severe emotional stress from a series of great personal misfortunes. A distinguished forensic psychiatrist will testify that he was desperate for emotional relief, and sought it in the same way he always had—by going fly fishing—and that Youngstown Lake had long been one of his favorite fishing spots. The psychiatrist will tell you that Mr. Vernon was suffering a state of temporary psychosis that made it literally impossible for him to do anything else.
“When you have heard this testimony and evidence, I believe you will agree that this was the case and will return a verdict that Mr. Vernon is indeed innocent by reason of temporary insanity. Thank you.” Exhaling to relieve tension, I returned to my seat, patting Vernon on the shoulder again as I did so.
I was in the habit of choosing what I called weathervane jurors and keeping an eye on their facial expressions and body language throughout a trial to try to divine their reactions to what they were hearing. This time I’d arbitrarily chosen Juror No. 8, the bait fisherman; Juror No. 11, the fly fisherman, and Juror No. 3, a stout middle-aged woman named Mrs. Halloran who wore a perpetually sour expression as if she’d just tasted something unpleasant. When questioned during jury selection she had conceded fishing was an acceptable form of recreation because it gave her husband an excuse to get out of the house every now and then. I thought he probably looked forward to those occasions far more than she did.
Now I checked all three jurors, but saw nothing in their expressions or postures to indicate how my opening argument had been received.
But at least they were all still awake.
“Mr. Danning, you may call your first witness,” the judge said.
“The people call Sergeant Darren Stringer,” Danning said, head bobbing.
The bailiff waddled to the door, spoke to someone outside, and came back with a uniformed officer in tow. Not for the first time I wondered why they make sheriff’s uniforms so ugly. I couldn’t even guess the names of the uniform colors, but each looked like something you wouldn’t want to step in.
Sergeant Stringer was stocky, dark-haired and looked forty-something, though he was probably younger; his job had left hard lines on his face. The clerk had him swear to tell the truth and nothing but and he took his seat on the witness stand.
Danning asked how long he had served as a Monroe County sheriff’s deputy. “Fourteen years,” he said, “the last five as a sergeant.”
“What is your current assignment?”
“I’m assigned to the patrol unit at the North Precinct.”
“And the North Precinct includes Youngstown Lake?”
“That’s right.”
“And that is within the bounds of Monroe County?”
“Yes it is.”
Danning moved closer to the witness stand. “Now Sergeant, directing your attention to the evening of Monday, May 19, of this year, do you remember where you were at that time?”
“Yes, sir. I was on patrol with Deputy Emilio Sanchez at Youngstown Lake.”
“Why were you on patrol there?”
“Well, we’ve been patrolling the lake at intervals ever since the Water Resources Protection Act became law, sometimes by boat and sometimes on foot around the shoreline.”
“And this time you were on foot?”
“Yes, sir. Because it was a night patrol, we each had night-vision goggles and Deputy Sanchez had a video camera with a night-vision lens.”
“Did anything unusual happen while you were on patrol that night?”
“Nothing happened for the first hour or so, but shortly before 11 p.m., as we were approaching Hood Point, we saw a light back in the woods. It looked like somebody with a flashlight was approaching.”
“What did you do then?”
“We took cover behind some bushes and waited. Eventually the subject emerged from the woods and turned off the light. At that point we activated our night-vision goggles and we could see him clearly. He came to the lakeshore within twenty feet of the spot where we were hiding.”
“Can you describe the individual?”
“Yes. He was a man wearing what appeared to be a fishing vest and carrying what looked like a fly-fishing rod.”
“What happened then?”
“The subject stripped line off his reel and began casting out into the lake.”
“And what did you do?”
“Deputy Sanchez was right next to me and I could see he had started to record what was happening with his video camera, so I decided to wait until he had a chance to get it all on tape. The subject made five or six casts, and I was just about ready to emerge from hiding and announce my presence when I heard splashing out on the lake. That’s when I realized he’d hooked a fish.”
“Go on,” Danning prompted, head bobbing.
“Well, I thought Sanchez should get t
hat on tape, too, so I waited while the subject played the fish—it looked like a big one—and finally got it to shore. Then he kneeled down, appeared to twist the hook free and let the fish go. That’s when I turned off my goggles, turned on my flashlight, identified myself as a police officer and told the suspect to freeze.”
“Did he?”
“Yes. He was obviously very surprised and muttered something that sounded like an obscenity. Deputy Sanchez joined me and we ordered the suspect to get down on his stomach and place his hands behind his back, which he did. I cuffed him, then patted him down and removed a small folding knife from his pocket and a pair of clippers on a cord around his neck. Deputy Sanchez helped me get him back on his feet and at that point I told him he was under arrest for violating the Water Resources Protection Act. Then I advised him of his rights.”
“Did he acknowledge that he understood his rights?”
“Yes he did.”
“Please continue.”
“I removed his wallet from his pocket and found a driver’s license with the name Garrett Vernon. I shined my light in his face to make sure he was the same person shown in the photograph on his license. He was, and he told me Garrett Vernon was his name.”
“Can you identify him now in this courtroom?”
“Yes. That’s him over there,” Stringer said, pointing to my client.
“Let the record show that Sergeant Stringer identified the defendant, Garrett Vernon,” Danning said. Head still bobbing, he went over to the evidence table, picked up a pair of long slender objects wrapped in plastic, and handed the package to Stringer. “Sergeant, can you identify this item?”
Stringer examined the package. “Yes. It’s a River Rat Fly Rod, eight and a half feet long for a six-weight line, whatever that is. It’s the rod I seized from the defendant.”
Danning brought the rod over to the defense table to show it briefly to Vernon and me. “That’s the most valuable thing I own,” Vernon whispered in my ear.
“Your Honor, I move to place this in evidence as People’s Exhibit 1,” Danning said.
Judge Winship looked in my direction. “Mr. Calloway?”
“No objection.”
“So ordered then.”
Danning repeated the procedure with the reel Stringer had seized from Vernon, which became Exhibit 2, then handed Stringer a small plastic bag and asked if he could identify the object inside.
“Yes. It’s the fly the defendant used to hook the fish. He told me it was called a Black Woolly Bugger.”
The Black Woolly Bugger became People’s Exhibit 3, followed by Vernon’s fishing vest, the pockets still filled with boxes full of flies and spools of leader material.
“Okay, Sergeant,” Danning said, “getting back to the scene of the arrest. What was the defendant’s demeanor at this time?”
“Objection!” I said. “Calls for a conclusion by the witness.”
“The witness may testify as to what he saw, counselor,” Judge Winship said. “Objection overruled.”
She was right. I sat down and shut up.
“Answer the question, please,” Danning said.
“He appeared downcast,” Stringer responded. “Dejected, I’d say.”
“Did he say anything?”
“He responded to our questions. That was all.”
“Was he acting disoriented or irrational?”
I really wanted to object to that question, but in view of the judge’s earlier ruling I held my tongue.
“No, he seemed quite calm,” Stringer answered.
“Okay, what did you and Deputy Sanchez do next?” Danning asked.
“We transported the defendant to the precinct station and booked him into a holding cell.”
“Thank you,” Danning said. “Your witness, Mr. Calloway.”
I approached the witness chair and bade Sergeant Stringer good morning. He nodded in return. “Sergeant,” I began, “have you read the text of the State Water Resources Protection Act?”
“Yes I have.”
“Can you briefly explain the intent of the act to the jury?”
“Well.…” He thought for a moment, then said, “I would say it prohibits all forms of recreation that could result in removal or pollution of state-owned waters so they can be preserved for irrigation, hydro generation, and so on.”
“Good. Thank you. Now, when you observed Mr. Vernon at Youngstown Lake on May 19, did you ever see him enter the water?”
“No.”
“Did you ever see him throw anything into the lake?”
“No.”
“Did he ever spit in the lake?”
“No.”
“Did he urinate in the lake?”
“No.”
“Did he remove any water from the lake?”
“No.”
“And he released the fish—it was a trout, by the way—unharmed?”
“Well, it appeared to be okay.”
“So he didn’t remove any trout from the lake, either?”
“No.”
“Were you surprised when the defendant released the trout?”
“Yes, I was. I couldn’t figure out why someone would go to all that trouble to catch a fish and then let it go.”
“Did you ask the defendant why he let it go?”
“Yes, I did.”
“And what was his reply?”
“I think what he said was, ‘If you have to ask the question, you wouldn’t understand the answer.’”
“That was all?”
“Yes, sir.”
“Did you think that was a bit peculiar?”
“Objection!” Danning said, getting to his feet. “Calls for a conclusion by the witness.”
“Sustained,” Judge Winship said.
“Withdraw the question,” I said. “So, Sergeant Stringer, if I understand your testimony, you never saw Mr. Vernon do anything that could cause pollution or withdraw any water or anything else from Youngstown Lake, is that correct?”
The sergeant hesitated again. “Yes, that is correct,” he said finally.
“In other words, he did not commit any of the perils the Water Resource Protection Act was designed to guard against. Is that right?”
Danning was on his feet to object, but Stringer had already begun his answer: “Well, he was fishing a lake that was closed to fishing under the act,” he said.
“But he did nothing to pollute the lake or remove any of its water, isn’t that right?”
Danning was on his feet again. “Objection, Your Honor,” he said. “Asked and answered.”
“I’ll withdraw the question,” I said, knowing the objection would be sustained. “No more questions for this witness.”
Out of the corner of my eye I checked my weathervane jurors. Mrs. Halloran still wore the same sour expression. The bait fisherman looked glum. I saw the fly fisherman, Juror 11, shake his head a couple of times as if he couldn’t believe what he’d just heard, but I didn’t know if that was a good sign or a bad one.
Stringer stepped down. “Call your next witness,” the judge instructed Danning.
“The people call Deputy Emilio Sanchez,” said Danning, head bobbing. The bailiff again waddled to the door and returned with Deputy Sanchez in tow. He was sworn and took the stand. His testimony was essentially a repeat of Sergeant Stringer’s, except for Sanchez’s description of how he had filmed the events of May 19 through his video camera.
Danning went to the exhibit table, picked up another object wrapped in plastic, handed it to the witness and asked if he could identify it.
“Yes,” Sanchez answered. “It’s the videotape I made of the defendant at Youngstown Lake on May 19.”
I waived objection and in response to Danning’s request the judge placed the tape in evidence.
“Now, Your Honor,” Danning said, “I would ask the court’s permission to play the tape for the jury.”
“No objection,” I said in answer to Judge Winship’s raised-eyebrow look.
The overweight bailiff, who was beginning to sweat, pushed in a wheeled cart bearing a large television set and video player, fussed with extension cords, and finally got everything working. The television set was placed on one side of the courtroom so that judge, jurors, prosecution and defense all could see it, though many spectators in the gallery could not.
Danning loaded the videocassette into the player and the TV set came to life, showing an eerie green figure moving toward the black void of Youngstown Lake. Even though the image was far from clear, the figure was recognizable as Garrett Vernon. There was no sound on the tape, so everyone watched in silence as Vernon began casting into the darkness. After several casts his rod suddenly bent sharply and he backed away from the shore and began reeling furiously. Moments later the image of a large thrashing trout appeared at the water’s edge, and Vernon quickly crouched, removed the hook and slid the trout back into the water. Seconds later the tape ended.
After getting Sanchez to confirm that Vernon was the man seen on the videotape, Danning concluded his questioning.
For my cross-examination I asked the deputy essentially the same series of questions I had asked Sergeant Stringer and received almost identical answers, including an admission that Sanchez had not seen Vernon do anything that would have jeopardized either the quality or quantity of the water in Youngstown Lake. But like Sergeant Stringer, he couldn’t resist ending his testimony by repeating the charge that Vernon had been fishing illegally. My weathervane jurors looked on impassively.
As soon as I sat down, Danning was on his feet again. “Your Honor, the prosecution rests,” he said.
“Very well,” Judge Winship acknowledged, glancing at the clock on the courtroom wall. “Since it’s nearly noon, this seems like a good time to break for lunch. Court is recessed until one o’clock.”
After the jury retired, the courtroom emptied except for Vernon, me, and the fat bailiff. By prior arrangement, the bailiff had ordered sandwiches sent in for me and Vernon, along with two for himself, and he sat in a corner eating noisily while Vernon and I huddled at the defense table. We had gone over Vernon’s testimony several times before, but I wanted to run through it again, emphasizing what I thought were the critical points. Vernon nodded occasionally but said little. He picked at his sandwich without really eating much of it and seemed listless.
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