“Iganovich is not charged with the Scofield murders,” says Lenore. “So where is the relevance?” she says. Lenore cannot resist.
“Give me a break, counselor.” Fisher fixes her with a stare. “It’s not a quantum leap to argue that this other killer, whoever murdered the Scofields, is the Putah Creek killer, that the police have the wrong man in Mr. Iganovich.” He flexes an eyebrow. “If that’s your pitch to the jury, a witness who may have seen this other killer becomes rather pivotal to your case. Don’t you think?” he says.
It is the thing I like best about Lenore. She does not cow easily.
She looks him in the eye. “No, I don’t,” she says. “Until Mr. Chambers can prove that the witness saw something,” she says, “that he actually has evidence relevant even to those killings, until then,” she tells him, “the identity of the party or parties in the trees, and all of the circumstances surrounding them, are irrelevant.”
This stops Fisher in his tracks. He makes a face like maybe she’s right, a hook on which to hang some qualified order.
“Still, how can he prove the relevance of what this witness may or may not have seen, if you have a monopoly on all of the information?”
I sense that we have hit a high point in our argument, as much of a concession as we are going to get from Fisher. It is time to play Solomon, if necessary, to offer up the division of the infant.
“We are searching for the witness. Every resource we have,” I tell him, “is on this case. I would propose a compromise,” I say. “A qualified order, limiting what we are compelled to turn over to the defense on this one issue. Allow us to mask the information on the witness, the blind in the trees, until we have identified and sequestered this person, taken him into custody, and discovered what it is he has to say.”
Fisher makes a face, like close, but no cigar.
“We have to make some disclosure to the defense,” he says.
“Fine, we tell them there is a potential witness, but no details, none of the circumstances surrounding the witness, nothing that might be used to ferret out his identity.”
Fisher is silent, sitting, musing in his chair. Then slow nods, like maybe this is not a perfect solution, just the best we may be able to do for now. For the moment I think we have dodged a bullet.
Chapter Twenty-six
I have spent the better part of a week on the phone, eating so much crow that I now spit feathers when I talk. These calls were placed to Herb Jacoby, the Crown Counsel in Canada. I have pleaded with him for cooperation, his help in producing one of the two security guards who arrested Iganovich.
Jacoby is not exactly the soul of benevolence these days, still nursing his anger over the abduction of the Russian. I have been applying apologies like a shaman’s balm to his sovereign pride, assuring him repeatedly that my office, our government, had nothing to do with this escapade, that it was a private self-help venture of Kim Park.
In the scheme of things, Iganovich’s statements regarding the abandoned van at the time of his arrest in Canada could be important to my case. I want this evidence available for trial. Chambers has thrown a net over it in one of his myriad motions to suppress.
This morning Judge Fisher looks down at the defense table and Adrian Chambers.
“A lot of paper,” he says. He’s talking about the small mountain of defense motions.
“I hope they’re all necessary,” he tells Chambers.
“Every one of them, your honor.” This from Adrian.
“Emm.” Fisher is not convinced.
“Are we ready to proceed?” he says.
Nodding heads from both tables.
“Fine,” says Fisher. “Let’s get to it.”
Chambers’s motions contain more redundancies than the failsafe systems on the space shuttle, a lawyer’s grab bag of backup arguments: There was no probable cause for the arrest; his client was not Mirandized or given the Canadian equivalent before he opened his mouth; the statements were coerced in violation of due process.
While a warrant for murder was issued for the Russian’s arrest, he was originally detained in Canada on charges of shoplifting. For this reason, the fact that the warrant did not match the charges of arrest, it is deemed to be a warrantless arrest. This means I have the burden of going forward, presenting my case first.
I outline the issues for the court. We will now argue on turf that I have created. I call my first witness.
Reginald Beckworth is the picture of a proper British constable, even though he is only private security. Precisely trimmed mustache and dark sideburns, a tweed wool suit and vest, he is better dressed than most lawyers and half of the judges in this courthouse. Eight years in corporate security, he is part of mid management with the Hudson Bay Company, heading security for one of their larger stores.
The witness identifies Iganovich as the man he and his partner stopped on suspicions the day of the arrest.
“He made a good number of furtive gestures with his hands to the inside linings of his clothing,” says Beckworth.
“So you thought he might be concealing merchandise?”
“Objection, leading.” Chambers is on his feet.
“Let me rephrase,” I say. “What did you conclude by these moves on the part of the defendant?”
“That he might be concealing merchandise,” says Beckworth.
“Thank you. Now tell me, during the time of these observations, who employed you? Who was paying your salary?”
“The Hudson Bay Company.”
“Have you ever been in the employ of any official police agency?”
“Twelve years with the Vancouver Police Department, but I retired,” he says, “eight years ago.”
I want to get this out early, his prior police employment, so that it is not later exploited by Chambers. I open the issue like a book to the court so that it does not appear that we have anything to hide.
“So at the time of this detention, when you stopped Mr. Iganovich, you were solely in the employ of the Hudson Bay Company?”
“Correct.”
“I take it that this was true of your partner as well, that he was employed exclusively by the Hudson Bay Company?”
“That’s correct. The company has its own in-house security, with its own training program.”
My object in this line of questioning is straightforward. To overcome Chambers’s contention that these guards were acting as agents of the state, I must place them clearly in the private sphere, beyond the pale of any state action.
“At the time you stopped Mr. Iganovich, did you know that there was a warrant for his arrest issued in this country?”
“No, I did not.”
“Did you have any reason to believe that he had committed any crime other than the suspected shop theft for which you sought to detain him?”
“No.”
“So in your mind, when you stopped Mr. Iganovich, this was a routine case of suspected shop theft and nothing more?”
“That’s right.”
“So prior to turning the defendant over to the police following his assault on your partner and yourself, there was no police involvement whatever in his original detention and apprehension?”
“None.”
I have slammed this door shut, as tight as I can on this issue.
“Would you tell the court what happened when you first approached Mr. Iganovich on the day in question?”
He gives a considered sigh. “I’d thought he’d like to have killed us both,” says Beckworth.
“We had watched him for some time, both on a surveillance camera in the store as well as from close observation from two angles down on the main floor. It was his manner of dress that initially brought him to our attention,” he says.
“Shoddy?” I ask.
“Yes. It was that,” he says.
Looking at the dapper Beckworth I can believe that this might have caught his attention.
“But more than that,” he says. “He was wearing a long
overcoat, blousey, loose clothing underneath. The kind of thing we watch for.”
“So there’s a profile,” I say, “for shoplifters?”
“Oh yes.” He says this with the conviction of a convert. “Long coats for men. Large full skirts and oversized panty hose for women. Baggy warm-up suits have become the unisex favorite in the last few years. People will hide the stuff in places you wouldn’t believe,” he says.
“I can imagine.” Visions of cavity searches for walkman stereos flash before my eyes. The proctologist’s worst nightmare.
“It’s a much larger problem than most people imagine,” he says, talking about shoplifters.
“Your suspect was milling about a table of expensive silk scarves,” says Beckworth. “We believed that he had palmed one of these.”
I stop him right there.
“What made you conclude that he had palmed the scarf?”
“One minute we saw it on the table in his hand, and the next minute it seemed to disappear, into the inner folds of the suspect’s clothing.”
“You saw this?”
“I did.”
“Thank you. Go on.”
“We approached the suspect. My partner barely had time to identify himself as store security, and we were into it with him, the three of us were on the floor, wrestling.”
“What did Mr. Iganovich do?” I say.
“For starters, he kicked my partner. Tried for the crotch, but missed. Took out his knee,” he says. “The man is still off on disability,” he tells us. “Before I could get there,” Beckworth explains that he was an aisle away, “the suspect hit my partner with an electronic device you call a stun gun, twice on the arm. Completely incapacitated him.
“With the help of two patrons we finally subdued him. He scratched my face, tore another fellow’s jacket,” he says. “Finally I managed to get a hold on him from behind, got the stun gun up behind his back where I could remove it from his hand.”
I show Beckworth a copy of his investigative report, the part that chronicles Iganovich’s statements about the abandoned van. He identifies this entry as being written by himself.
“Was it during this time, while you were wrestling him to the ground that Mr. Iganovich made the statements referred to in your report?”
“Moments after,” he says, “when we had him down on the floor. He seemed panicked, preoccupied by other things . . .”
“Objection. Move to strike.” Chambers is on his feet. “That’s pure speculation on the part of the witness,” he says, “that the defendant was panicked or preoccupied.”
“Common experience?” I tell the court. It is one of the exceptions to opinion testimony offered by a non-expert.
Fisher looks at me like nice try.
These are subjective feelings, not physical manifestations of demeanor and I know it.
“Next you’ll have the witness climbing into the defendant’s head to tell us what he was thinking,” says Fisher.
I would if I could. Thoughts kept to myself.
“The objection is sustained at least until Mr. Beckworth shows me his Ouija board.”
“What about the motion to strike?” says Chambers.
The judge looks at him, like don’t be greedy.
“Fine,” he says, looks at the court reporter. “Strike it.”
A point for the other side. I move on.
“So when the defendant was on the floor being restrained, this was when he made the statements about his van?”
“That’s correct.”
“In your capacity as a private security officer under the Canadian system, do you normally caution a suspect that anything he says may be taken down and used against him?”
“Not usually. We leave that for the police if it becomes necessary to involve them.”
“In this case did you make such an admonition to the defendant?”
“No.”
“Why not?”
“Well, as I said it wasn’t standard procedure. And in this case, even if we’d wanted to admonish him, there was no opportunity,” he says. “The statements were made without any warning, during a physical altercation. We weren’t questioning the man. We were trying to restrain him.”
“Would you call the defendant’s statements as set forth in your report purely voluntary?”
“Objection.” Chambers is out of his seat again. “The defendant had at least three men on his back, one of whom was twisting his arm off. The prosecution has a funny sense of what is voluntary.”
Fisher looks at him, a little puzzlement. “Mr. Chambers, are there grounds for your objection in there someplace? Maybe I missed them,” he says.
“Leading question,” he says.
“Thank you. Overruled.”
One for two, Chambers sits down.
Beckworth sits there looking at me, not sure whether there is a question before him.
More than one case has been lost on appeal because a lawyer on pretrial motions lost track of his questions, became mired in objections, and forgot to return for a vital answer.
I ask the court reporter to read back my last question.
She fingers through the fan-folded little sheets from the stenograph machine, finds her place and reads:
“Mr. Madriani,” she says. “Would you call the defendant’s statements as set forth in your report purely voluntary?”
I look at the witness.
“Absolutely,” says Beckworth. One more piece cobbled into place.
“Then from your testimony is it safe to characterize the statements, the admissions made by the defendant about his van at the time of his detention, as unsolicited and spontaneous?”
“Yes,” he says. “That’s a good description.”
I walk toward our counsel table. Goya is sitting there, checking off points on a yellow legal pad. We will confer before I release the witness to make sure that I haven’t missed anything.
“Now, immediately after your altercation with the defendant, did you have any reason to believe that he was wanted for any crime other than the suspected shop theft?”
“No.”
“Even with such a violent reaction, you still had no reason to suspect that Mr. Iganovich might have committed a more serious crime?”
“Not at all,” he says. “Shop thefts all react differently,” he tells us. “Some are retiring. They will simply stand there and empty their pockets. Carry on the most cordial conversation as they confess their crime. Women often cry, and some men. Then again, a few will pull a gun or a knife, and try to kill you. It’s very much like a traffic stop,” he tells us, “you’re dealing with the unknown.”
“Have you ever been assaulted before while detaining a suspected shoplifter?”
“Several times,” he says, “though this was clearly the most violent. If he’d been armed with deadly force, we would clearly have been in big trouble,” he adds. This last is gratuitous.
“Objection,” says Chambers. He’s on his feet. “The witness is speculating again.”
“Sustained,” says Fisher.
“Mr. Beckworth, please just answer the questions.”
“Yes, your lordship.”
Fisher looks at him. He’s been called a lot of things in his time, but never this.
After coming all this way Beckworth seems determined to stick a pike in the defendant. Half of the cops in this city, given the injuries meted out by Iganovich in this brawl, would sit in the witness box seething, overflowing with venom. This witness at least puts a polished face on it.
“You said earlier that your employer has its own training program for security personnel?”
“That’s correct.”
“Did you take this training?”
“I did.”
“Did they teach you there how to deal with violent situations?”
“Usually to avoid them, wherever possible. It isn’t worth the risk of injury to ourselves or a customer.”
“But in the course of your career as a police off
icer, and later in private security, were you taught the techniques, the holds and maneuvers that might be used in restraining a violent suspect?”
“Oh yes.”
I move with the witness through a line of questions intended to remove the specter of some brawl on the floor, to lift this thing to a more professional level. Then I pop the clincher, the reason for this line.
“And did they teach you to use only that degree of force absolutely necessary to restrain the individual, and no more?”
This goes beyond leading. I am prepping him now and Chambers knows it. He sits up straight in his chair ready to object. But it’s too late. The damage is done. He sits back, looking at me, a glare from the corner of his eye.
“Yes,” says Beckworth.
“Mr. Beckworth, how would you characterize the amount of force used to restrain Mr. Iganovich on the day in question?”
“Just the minimum,” he says. “Only what was absolutely necessary to disarm him, to take him into custody,” he says.
Wonder of wonders.
Having drawn the desired legal conclusion, I take the witness on a tour of the less refined and lower martial arts. In three minutes Beckworth has verbally choreographed all of his moves that day, the holds used on Iganovich, in minute detail. It may bear little resemblance to fact, a symphony of recollections that sounds more like “Swan Lake” than the “Thrilla in Manilla.” But it serves to lock a clean version of the events in the witness’s psyche, a version the state can live with, one not likely to be tumbled and shaken too much on cross.
It is why, in a motion to suppress evidence, it is not always bad to shoulder the burden of going forward.
I confer with Lenore back at the table. Everything is crossed off her long list. I hand the witness over to Chambers.
He gets up from the table, maintains a polite distance, but stares directly at the witness before asking any questions. Then he speaks.
“Mr. Beckworth. Did you have a chance to go over your testimony with Mr. Madriani before appearing in court here today?”
“I did.”
“When was that?”
“Once yesterday. And earlier today before arriving in court.”
Madriani - 02 - Prime Witness Page 26