All eyes turned to Alcott. She was shell-shocked. “I didn’t mean to do any of that, Your Honor. I was just addressing an anticipated defense.”
“You can’t anticipate my defense,” Talon snapped, “because I don’t have to put on a defense.”
“But you’re going to,” Alcott protested.
“Maybe I will,” Talon answered. “Maybe I won’t. But that’s my decision, and you just commented on it.”
“Enough!” Judge Haroldson boomed. “Both counsel will address their comments to the bench.” His face was turning red. He ran a hand over his head and sighed. “I am not going to dismiss a serious case like this because of a slip of the tongue in opening statement.”
Of course not, Talon knew.
“I’m also not going to grant a mistrial,” the judge went on. “That would just make us pick a new jury and I’m not convinced this jury was actually prejudiced by Ms. Alcott’s comment.”
Talon expected that too.
Haroldson looked to the prosecutor. “But Ms. Alcott, no more comments on what evidence the defense might or might not put on. If you’re going to put on evidence that they weren’t the defendant’s pants, then you can say that. But you can’t anticipatorily discredit evidence the defendant has no burden of producing. Is that understood?”
Alcott nodded meekly. “Yes, Your Honor.”
“Good,” Haroldson said. He turned to his bailiff. “Fetch the jury.”
The bailiff did as directed, and two minutes later the jurors were back in the jury box, looking expectantly at Alcott. All told, Talon had managed to insert an eight-minute hole in the middle of Alcott’s opening statement. And that hole would be punctuated by the judge.
“The objection is sustained,” Haroldson stated for the record. “You may continue, Ms. Alcott.”
She might continue, but it wasn’t clear she could. She was clearly rattled, not just by the objection and argument and ruling, but by the fact that she hadn’t seen it coming. That made her second guess everything else she was about to say. The last thing she needed was a third objection interrupting her opening. And she could be sure Talon would keep the jury out for twice as long next time.
“And so, ladies and gentlemen,” she said, “based on everything the State’s witnesses will say, we expect you will be convinced beyond a reasonable doubt that the defendant is guilty as charged. Thank you.”
She turned and walked back to the prosecution table. She tried to look collected, but Talon could see she was shaken. She hoped the jury could see it too. But she couldn’t dwell on it.
“And now, ladies and gentlemen,” Judge Haroldson announced, “please give your attention to Ms. Winter, who will deliver the opening statement on behalf of the defense.”
CHAPTER 29
Talon stood up and swiftly took her place before the jury. She didn’t waste time thanking everyone in the courtroom or expressing her hope that it ‘may please them.’ She got right to it.
“Not his car. Not his gun. Not his drugs.”
She didn’t say ‘Not his pants.’ They’d already heard it from Alcott.
“It’s as simple as that,” Talon continued. “And yet, nothing is that simple. Not when you’re a Black man, living in South Tacoma, scraping by, trying to pay your bills, and driving a used car that might have one burnt out bulb.”
She turned and pointed at Alcott. “The prosecutor just told you what she expects the evidence to show. It was interesting enough. But what’s more interesting is what she didn’t tell you.”
She turned back to the jury. “First, she told you that Officer Flaherty was on routine patrol in the City of Tacoma. What she didn’t tell you was that he was patrolling in South Tacoma, a predominantly African-American neighborhood. Why not tell you that?
“Second, she told you that the vehicle Mr. Frazier was driving had its license plate light out. But she didn’t tell you that a license plate light is a single bulb and its only purpose is to make sure cops patrolling neighborhoods at night can run license plates. She also didn’t tell you that South Tacoma is split down the middle by South Tacoma Way, a major thoroughfare with streetlights everywhere. She said the light was out. She didn’t say the officer couldn’t read the plate anyway. I wonder why she didn’t want to tell you that.
“Third, she told you Mr. Frazier’s driver’s license was suspended in the third degree and that’s a crime. What she didn’t tell you is being suspended in the third degree means his license was suspended for not paying a ticket. For being poor. And that advocacy groups like the ACLU have repeatedly called for the decriminalization of Driving Suspended in the Third Degree.”
Now it was Alcott’s turn to object. “Objection, Your Honor. What the ACLU does or doesn’t think is irrelevant. It’s still a crime for now.”
Haroldson seemed happy to sustain the objection. “Direct your comments to the facts of the case, Ms. Winter,” he instructed. “Not policy arguments which are more properly before the Legislature.”
“So why not tell you Mr. Frazier was suspended for unpaid tickets?” Talon continued. That was her point anyway. “Why not tell you the entire story? Mr. Frazier is a poor, Black man, living in a poor, Black part of town, who got arrested for something that shouldn’t even be a crime, so two White cops could search his car.”
Talon expected Alcott might try to object again, but the prosecutor stayed seated. Probably smart. There would be enough people on the jury who didn’t want to hear that spin on the story that Alcott could avoid looking like she thought it hurt her by actually objecting. Or else, she just couldn’t think of an objection to make.
Either way, Talon soldiered on. “The reason Ms. Alcott didn’t tell you the whole story is that she doesn’t want you to think of Mr. Frazier as a whole person. Did she even say his name one time? Or did she constantly dehumanize him and call him ‘the defendant’?”
She stepped over to the defense table.
“Look at my client ladies and gentlemen,” she implored. “Look at him. He’s a large Black man. The kind you might cross the street to avoid, if you’re honest with yourself. And then you hear that he drives on a suspended license, and he goes from just a large Black man to a large Black criminal. The perfect stereotype. The one every Black man in this country has to combat every day of their lives. And if he’s not a real person—with a name and story and friends and family—if he’s just a large Black criminal, well, then, how hard is it to believe the drugs were probably his? The gun was probably his? And after all, we can’t be too careful, can we?”
Alcott finally stood up. “I’m going to object, Your Honor. This doesn’t have anything to do with the evidence in the case.”
Talon shot off a response before Haroldson could sustain the objection. “It goes to the heart of the evidence, Your Honor. The evidence will not support the charges. The car wasn’t his, the gun wasn’t his, and the drugs weren’t his. That’s what the evidence will show. And the State knows it. That’s why they’re relying on stereotypes and fear to convict and punish my client. To punish Mr. Frazier.”
Haroldson jabbed a finger at Talon. “No more speaking objections, Ms. Winter,” he barked. Then, realizing the objection was Alcott’s, “Or speaking responses. I’m going to sustain the objection. If you have anything further to say about the facts of the case, proceed. If not, you’re done.”
Talon nodded. “I have more, Your Honor.”
She turned back to the jury.
“Not his car,” she repeated. “You will hear from a witness familiar with both Mr. Frazier and the vehicle that the car driven by Mr. Frazier that night was actually borrowed from another man, who in turn had bought the car from a third party.
“Not his gun. You will hear from a fingerprint expert who will tell you that the gun had a partial fingerprint on it and it’s not Mr. Frazier’s fingerprint.
“Not his drugs. I told you Mr. Frazier has his own story. You’ll hear that story, and it’s not all pretty. But after you hear it, you�
�ll understand how someone else’s drugs could be in his pocket without him even knowing it.”
Not his pants. She said it without saying it.
“Remember what the judge told you during jury selection. Be careful. And if you are, if you take your oath seriously and you hold the State to its burden, then at the end of this trial, you will be convinced of one thing and one thing only: That man over there, that real-live human being, Mr. Ezekiel Frazier, is not guilty. Thank you.”
Talon returned to her seat. Zeke patted her on the back and shook her hand as she sat down. At least one of her audiences liked her opening. But another one seemed less pleased.
“Ms. Alcott,” Judge Haroldson harrumphed, “call your first witness.”
CHAPTER 30
The first witness was Officer Flaherty, of course. One of the interesting things about trials was the fact that before almost every witness took the stand, the jury already knew, at least generally, what they were going to say, because the attorneys had already told them during opening statements. The only real unknown was whether the witness was going to confirm the prosecutor’s spin on the facts, or the defense attorney’s. And with a cop, even that drama wasn’t all that dramatic.
“Please state your name for the record,” Alcott began after Judge Haroldson swore Flaherty in.
“Michael Flaherty,” he replied. Truthful so far.
“How are you employed, sir?” Alcott moved on through her prepared script.
Flaherty turned to the jury to answer that one. “I am a police officer with the Tacoma Police Department.”
“How long have you been a police officer with Tacoma?”
“I’ve been with Tacoma Police for eleven years,” he again told the jury. “And I was a police officer in Oregon for two years prior to that.”
Alcott nodded. She was literally checking off boxes on the script she was holding in front of her as she stood facing the witness. “While working on patrol as a police officer, did you have occasion to come into contact with anyone who is the courtroom here today?”
Flaherty nodded, turned and nodded again to the jury, then looked at Ezekiel Frazier and pointed. “Yes. The defendant, seated next to his attorney at the defendant’s table.”
“May the record reflect that the witness has identified the defendant,” Alcott said to no one in particular. It was a stupid statement. The record already reflected it. He even used the word ‘defendant.’
“It shall so reflect,” Haroldson boomed. Very official. Very pro-prosecution.
“Could you explain to the jury how you came into contact with the defendant?” Alcott prompted.
Flaherty smiled. “Of course.” Then, he turned again to the jury.
Flaherty was actually confirming both Alcott’s and Talon’s spin at the same time, without realizing it. In part because Alcott hadn’t had an opportunity to coach him after Talon’s opening. So he was going to give the jury the facts Alcott promised them, but he was also likely to do it in the way Talon told them he would.
“I was on routine patrol in the City of Tacoma when I noticed a vehicle with a non-functioning license plate light. I activated my emergency equipment and effectuated a traffic stop. I identified the driver as the defendant.”
Just like Talon had said. No mention of the neighborhood, the lighting conditions, nothing. Just: equipment violation equals traffic stop.
But Alcott had heard Talon’s opening, and smartly tried to draw the sting from Talon’s cross-examination.
“What part of the city were you patrolling?” Alcott asked.
Flaherty thought for a moment. He hadn’t forgotten Talon’s accusations at the suppression hearing. “The southern part of the city,” he tried.
“South Tacoma?” Alcott led him before Talon could object to the leading question.
“Uh, yes,” Flaherty confirmed. He’d turned back from the jury and was looking at Alcott, not sure what she was trying to ask.
“And what type of neighborhood is South Tacoma?” Alcott asked.
Talon winced at the unartful way she asked it. Everyone knew she was really asking, ‘Is that a Black neighborhood?’ Well, everyone except Flaherty.
“Uh, it’s mixed use,” he responded slowly. “A lot of residential, mixed in near some heavy commercial areas and some light industrial.”
Alcott tried again. “What about the demographics?”
Talon might have considered objecting to Alcott trying to lead without actually leading, but she was enjoying watching the two of them twist in the wind a bit.
Flaherty knitted his eyebrows at Alcott. “Do you mean, is it a high-crime area?”
Talon had to suppress a smile. That is what Alcott meant, but the label she was looking for was just ‘Black.’
Alcott shook her head, and decided to cut bait before Flaherty said something too terrible to fix.
“Okay, let’s move on,” she indicated. “What did you do when you contacted the defendant? Did you ask for anything?”
Flaherty looked back to the jury again. “I asked for his driver’s license, proof of insurance, and vehicle registration.”
“Was he able to provide that information?” Alcott asked.
“No,” Flaherty answered. “Only his driver’s license. He didn’t have the registration or insurance.”
Why not? Talon wanted to ask. The jury probably wanted to ask it too. But Alcott chose not to. Which was good for Talon in the long run.
“Using his driver’s license,” she asked instead, “were you able to determine anything about the status of his privilege to drive?”
“Yes,” Flaherty answered crisply. He turned to the jurors. “His privilege to drive was suspended.”
For what? Talon asked in her mind.
Alcott paused. The bit about poor people getting suspended because they couldn’t afford to pay their tickets probably wasn’t on her script. But it was basic trial advocacy to draw the sting from what one knew one’s opponent would ask.
“In the third degree, correct?” she confirmed.
“Yes.” Flaherty nodded.
“For unpaid tickets?” Alcott pressed.
Flaherty hesitated. “I don’t recall exactly,” he answered. “That is the most common way to be suspended in the third degree, but there are others.”
Talon considered that answer. The thing about cross-examination was that it really was a responsive art. Of course, a lawyer could prepare areas of inquiry, even specific questions, in advance. But the best cross was the one that sprang organically out of the direct exam itself, that drew its strength from the direct, like a judo move. The phrase ‘I don’t recall’ echoed in her mind, and she couldn’t suppress a grin as she became suddenly very anxious for Alcott to finish and sit down so she could have her chance at kindly Officer Michael Flaherty.
Her opportunity came soon enough. Flaherty didn’t do the searches that led to the contraband, so he didn’t have a lot more to say after telling the jury he called for backup and naming Ruck as the officer who arrived. Alcott double-checked her script for several almost awkward moments, then announced, “No further questions,” and headed back to the prosecution table.
Talon stood up and stepped around the defense table.
“You stopped Mr. Frazier because his license plate light was out?” she asked. “Is that right?”
“Correct,” Flaherty confirmed.
“How long were you following my client before you noticed the license plate light was out?”
Flaherty thought for a moment. “I’m not sure.”
“But more than just a second or two, right?” Talon asked. “I mean, a burned out license plate light, that isn’t something you would just notice from two lanes over, right?”
Flaherty shrugged. “You might, depending on the lighting conditions.”
“And what were the lighting conditions?” Talon asked.
Flaherty thought for a moment. “I’m not exactly sure. Like I said, South Tacoma has a lot of commercial, wh
ich can be pretty brightly lit even at night, but it also has residential, which is usually darker.”
“The residential areas,” Talon repeated back, “are dark?”
“Correct,” Flaherty answered.
“You mean they’re Black?” Talon accused.
Flaherty sat up straight. “No, ma’am. That’s not what I meant at all. I meant there are less street lights.”
He was rattled. Good, Talon thought. Rattled meant he wouldn’t be thinking clearly. And he’d be happy to discuss something else.
“So how long were you following my client?” she repeated her earlier, still unanswered question.
Flaherty thought for a moment. I’m not sure. Long enough to confirm the equipment violation.”
“The license plate light?” Talon translated.
“Yes,” Flaherty conceded.
“And you’ll agree with me that might take longer than noticing a defective brake light, or swerving, or speeding, right?”
“Again, depends on the lighting conditions,” Flaherty said.
“And again, you don’t remember what those lighting conditions were?”
Flaherty shrugged. “Not exactly, no.”
“Was Mr. Frazier speeding?”
“Not that I recall,” Flaherty answered.
“If he had been, you would have put that in your report, right?” Talon boxed him in.
“Yes, ma’am.”
“And it’s not in your report, is it?”
“No, ma’am.”
“So, he wasn’t speeding?”
“Not that I recall.”
Talon smirked and nodded. “Okay.” She took a small step closer to Flaherty. She wanted him uncomfortable. Closing a distance always made the target uncomfortable.
“Was he swerving?”
“Not that I recall.”
Talon Winter Legal Thrillers Box Set Page 38