by Jim Dutton
“Mr. Drummond, do you have any questions of the juror just called to sit in the box?”
“Yes, I do Your Honor. Just a few.”
“Proceed.”
“Sir, I see that two of your relatives were convicted of drug dealing. What are your familial ties and are you close to them?”
“It was my father and my older brother. I don’t see much of my father but I’m very close to my brother.”
“Do you think they were fairly treated by the criminal justice system?”
“My father was, but they came down too hard on my brother.”
“Wouldn’t the unfair treatment of your brother make it difficult for you to be fair and impartial in this case?”
“No, I can be fair. It happened awhile back.”
“How far back?”
“He was released from state prison a year ago.”
“I see you are a social worker. Do you work with any people making the adjustment back to civilian life after being in jail? Do you sympathize with how difficult it often is to make that adjustment?”
“I do work with some former inmates making the adjustment to life on the outside. It’s extremely difficult for some of them and I sympathize with their plight.”
“Thank you, no further questions.”
“Defense, any questions of this juror?”
Mr. Lipman responded, “Yes, just a couple.”
“Go ahead.”
“Sir, does the fact that you’re performing this admirable job, helping people reintegrate back into society, have any effect on how you will view this case?”
“Not at all.”
“Can you follow the court’s instructions to put aside any feelings pro or con that would impact your ability to be a fair and impartial juror?”
“I can. I pride myself in being fair.”
“Thank you sir. No further questions.”
“Your challenge, Mr. Drummond.”
“Thank you, Your Honor. I’d like to thank and excuse juror number eight, the man we just questioned.”
Mr. Lipman jumped out of his seat. In a strong, disgusted voice, he said, “Batson, Your Honor, can we approach?”
“Yes, the attorneys to my chambers. Madam court reporter, please come with us.”
Once they were all seated in chambers, Lipman couldn’t wait to start in. “Your Honor, I move for a mistrial based on the defendants’ right to a fair and impartial jury under the Sixth Amendment as well as their rights under the Equal Protection Clause of the Fourteenth Amendment. Mr. Drummond excused that last juror solely on the basis of race. He didn’t like the fact that there would have been not just one, but two black jurors in the box. The juror is a credit to our community, has a spotless record, and toils away as a social worker. My client and the other defendants are entitled to a mistrial for prosecution misconduct. Excusing the juror on the basis of race is abhorrent.”
“Okay Mr. Lipman. I get it. Try to keep the theatrics down a bit. Mr. Drummond?”
“I didn’t excuse the juror on the basis of race. It was clear from his questionnaire and my questioning that two family members, his father and older brother, were convicted of drug dealing. As to his brother, in answer to my question if he believed the criminal justice system had treated him fairly, he responded, and I quote, ‘They came down too hard on my brother.’ His brother was only released from state prison a year ago—it’s still fresh on the juror’s mind. He also said that he sympathizes with some of his clients that he tries to reintegrate back into society from jail. Here, we have a drug case, with three leading cartel members, who everyone knows will go to prison if they are convicted. The people don’t have to rely on a prospective juror’s statement, ‘I can be fair and put aside any feelings of sympathy or prejudice.’ The People are also entitled to a fair trial with unbiased jurors. Excusing the juror was entirely proper.”
“Thank you Mr. Drummond. You’ve made your record for appeal Mr. Lipman. Your Batson motion is denied. There were justifiable, non race-based reasons for the prosecution to excuse the juror. We’ll go back in and take a 15 minute recess.”
By mid-afternoon, it had worked out as Nick had planned. A Hispanic woman, in her forties, was seated next to the then one remaining black juror, and the next juror to be seated was a black woman, who sat at the other end of the panel. Josh and Nick had the Hispanic woman ranked at a four—a solid juror, hardworking, with two sons who were good students and active in school activities. Nick, in an attempt to throw the defense off, made a show of not being too happy with the Hispanic women, hoping they would take the bait and keep her on the panel.
There were only three peremptory challenges left, two for the defense, one for the prosecution. All the attorneys were frantically looking back at the next several jurors in the audience who would be called to fill the excused jurors’ seats. The peremptory challenges were used. The last three to be selected as jurors didn’t pose a threat to either side. They seemed like they would go along with the majority. One was a 26-year old male. He had obtained a masters in library science and was working at a university library. He seemed well-rounded— he surfed, ran, and liked to travel. The final composition of the jury was seven women and five men, of which two were black and two were Hispanic. The remaining jurors were white.
By late afternoon, after three days of picking a jury, all the attorneys were mentally exhausted. Judge Orsini was indefatigable. He was going to make sure they picked the three alternate jurors by the end of the day. The prosecution and the defense each got two additional peremptory challenges for the alternates. Twelve prospective alternates were questioned. Each side knew what juror came next if they challenged an alternate. Judge Orsini had successfully beaten the attorneys down. The prosecution and the defense used just one challenge apiece. They had their three alternates by 5:30 p.m., an hour over the normal court day. Judge Orsini excused the jurors until 10:00 the next morning, telling them that the attorneys and he had to go over some instructions before the jury would hear opening statements.
The next morning, everyone was in place when Judge Orsini directed Nick to give his opening statement. Nick was glad that Rona was so accomplished in preparing power point demonstrations. In Nick’s opening, he projected maps of Yaak, Montana, the various warehouse locations, and north coast San Diego, along with key photographs of the drugs seized and the motorcycle shooting scene. This helped the jurors visualize the case and better appreciate what the prosecution intended to prove. Nick went over the charges and the expected evidence to prove the charges. He managed to keep his opening statement to around an hour. Nick kept constant eye contact with the jurors. He walked around some and changed his voice inflection occasionally to keep the jurors’ interest. When he came up to an hour, he noticed a few of the jurors drifting. He summarized the rest of his opening statement and had the jurors’ complete attention at the end. “The evidence will show that the defendants are guilty of all the counts in the indictment!”
The three defense attorneys gave credible statements. For the most part sticking to what they expected the evidence to be. Infrequently, one of them would cross the line into improper argument. Nick chose not to object because the instances weren’t that blatant. There’s nothing worse than objecting to opposing counsel’s opening statement or closing argument and having the judge side with the opposing party. It makes it look like the prosecutor is trying to unfairly impede what opposing counsel is saying. The prosecutor has to remain the good guy in the jury’s eyes—the presenter of truth.
After the opening statements, the judge read some instructions about jurors’ basic duties and how to assess witness credibility. Orsini excused everyone for the weekend at 4:00 p.m.
Nick and Pepe drove back to the office, talking about the witness prep interviews scheduled for the Montana witnesses over the weekend. Nick was looking forward to seeing Drury again and meeting hi
s sidekick Zack. Also, Biker Sue should be a treat. However, what Nick really anticipated the most was to bring Luis’ former battered girlfriend, Felicia, from her safe house in Topeka to face Luis at trial. Her suffering and her fear of Luis and the cartel would demonize the defendants in the eyes of the jurors.
CHAPTER THIRTY
Topeka P.D. Lieutenant Tom Jasco arrived at the destroyed home five minutes after the first responder. Fire trucks were already using high velocity nozzles to pour water on the flames. It looked like one side wall and the back wall of the single story house were still standing. Nothing else. He could feel the heat a hundred feet from the front of the house. Neighbors were cordoned off one hundred yards away. A local television station was filming. A reporter began to interview neighbors.
Many of the neighbors were wide-eyed, with tormented faces. A few were sobbing. It reminded the Lieutenant of scenes he had seen during Desert Storm. The devastation was on a much smaller scale. But the terror and grief of the civilian population was the same. A sedan had crashed into a pole down the street. Firemen and medics had surrounded the car.
Firemen and police began to move around the back of the house as the flames died down. Sgt Hillis was leading the police team. A minute later, Hillis came running from the backyard, yelling, “Medics! We have a woman down in the backyard. Still breathing. Looks like multiple broken bones.” An emergency team, with a stretcher and portable oxygen, rushed around back. Lieutenant Jasco followed them.
He wasn’t prepared for what he saw. A young black woman was face up, 20 feet from the back wall of the house. She looked like a rag doll. Limbs flung out in every direction. Her hair and face were singed. Blood was coming from wounds on her face, leg and arm. She wasn’t moving. Jasco watched as the medics placed a neck brace on her, and slipped the stretcher underneath her, with minimal movement of her body. An oxygen mask was over her face. As the medics carried her to the emergency medical vehicle, Jasco was told she’d be taken to Municipal Hospital. As they were hooking up an IV, Jasco gently searched for ID. He pulled out a law enforcement flasher, identifying the victim as Deputy U.S. Marshal Lily Perkins. He called dispatch to have the U.S. Marshall’s 24-hour line called. That’s when the dispatcher told Jasco about Deputy Attorney General Nick Drummond’s call. Jasco told dispatch he’d get back to Drummond when he had more information to report.
From what dispatch relayed to him, Jasco thought he’d better check out the crashed car as it might involve the San Diego agent. The airbag hadn’t deployed. A medic was checking a woman’s vitals while another was bandaging her head, stemming the bleeding. There was a Glock by her feet on the floorboard. She was unconscious. Jasco asked the medic if he could check for identification. “Carefully,” he replied. Jasco went through her purse and found his second law enforcement flasher of the evening. Ana Schwartz, Special Agent, Immigration and Customs Enforcement.
The medics were tenderly removing her from the car onto a stretcher. “What can you tell me about her condition?” asked Jasco.
“She’s breathing fine. She has quite a bump on her forehead where she hit the steering wheel. She hasn’t lost a lot of blood. Probably has a concussion. We need to get her to Muni right away. There may be brain swelling.” Jasco watched as they hooked her up to an IV in the emergency vehicle and sped away.
His radio blared. “Lieutenant, this is Officer Belden, you need to come straight down Elm two blocks and take a right on Third Street. There’s a burned-out army Humvee in a vacant lot.”
“Be right there.” Instead of getting into his unmarked car, and attempting to weave his way through all the police cars and emergency vehicles, Jasco took off in a jog down Elm. When he turned onto Third Street, he saw a fire engine and two police cars at the end of the block. He picked up his pace, thankful that he worked out on a treadmill three times a week. The husk of an army Humvee was in the middle of the lot, still smoldering, but no visible flames. A machine gun was mounted onto the middle of the Humvee and a rocket launcher was charred by its side. Jasco spoke into the radio transmitter hooked to his shoulder. “We need a vacant lot at Third and Fern cordoned off and a forensics team here immediately. We have the vehicle and the armaments used in the attack of the residence.”
Jasco walked around the street adjacent to the vacant lot. He saw fresh red drops coming from the sidewalk, closest to the Humvee, going across the street to the opposite curb. He immediately spoke to Officer Belden, “It looks like blood, probably coming from someone who was in the Humvee. Cordon this off. Point it out to forensics. They’re on their way.”
Jasco walked back to the primary scene. Mentally trying to take it all in. What could possibly have brought on this devastation? He needed to talk to prosecutor Drummond. He dialed Drummond’s number. Nick answered immediately. “Hello, this is Drummond. Is this Topeka P.D.?”
“Yes, this is Lieutenant Jasco, and I’m at the scene of 131 Elm. I saw your Agent Schwartz. She crashed into a pole. High velocity rounds, probably 50 caliber, went through the back of her sedan….”
Nick interrupted. “Tell me she’s alive! Is she okay?”
“She’s alive. She’s unconscious.” He told Drummond exactly what the medic told him. Jasco also told Drummond about the demolished house, and the burned-out Humvee, with the 50 caliber machine gun and the rocket launcher. “Someone wanted to take down that home real bad. What do you know about this?”
“A lot. We just started a federal trial against the top three heads of the Baja Norte Familia cartel. They have taken ruthlessness to a whole new level. They run their drug and money laundering organization through fear and deadly efficiency. 131 Elm Street was a safe house for our protected lead witness in the case, a former girlfriend of one of the chiefs of the cartel. Deputy U.S. Marshal Perkins was the witness’ handler. Agent Schwartz was going to fly back with the witness tomorrow morning. Is there any sign of the witness, a female Hispanic in her early twenties?”
“No. Hopefully, she wasn’t in the house. No one could have survived the explosions and fire.”
“Have the fire fighters gone through the house yet?”
“Not yet. It’s still too hot. A team is forming. They’ll go through the ruin and ashes shortly.”
“I’m flying there on the first flight out of San Diego tomorrow morning. I want to meet with you.”
“Can do. I’ll be working this case tomorrow and many days after.”
“Thank you for getting back to me. If anything breaks before tomorrow, please call me.”
Nick dialed Josh. He started to fill Josh in. Josh cut him off. “Turn to CNN. There’s a live feed of the burned-out house.” Nick did. The horror of what happened to Felicia, Deputy Perkins and Ana was brought into his living room.
“Josh, I’m going to Topeka tomorrow morning, first flight out. Call the defense attorneys, tell them we’re asking for a two day continuance, that I’ll be in Topeka. Keep the Montana witnesses here. I still want the trial to go on. We’re not going to let these bastards off the hook. Research if we can get any of Felicia’s statements into trial, now that she’s dead. We have to think she’s dead if she was in that home. If anything breaks, I’ll let you know. Have Pepe fill you in as soon as possible about Luis sending messages out of the prison through a trustee. We need a connection between Luis and the residence attack if we’re going to get it into evidence at trial.”
Nick hung up. He just sat in his lounge chair, staring into the fish tank. Worry and thoughts were swirling around in his head. Was Ana going to be all right? Was it possible that Felicia was somehow alive? How were they going to get this into evidence? How inflammatory would it be? Would they be risking a mistrial if there was insufficient evidence to tie the attack to the three cartel members? If Nick could only prove the connection to Luis, how would they handle the other two defendants? Separate trials? Nick only wanted to do this trial once. There was nothing worse than having to retry a case.
It was always more stale the second time, and a thousand-fold more tedious.
Nick eventually dozed off in his chair.
Fireman Percival was going through the house in the area where the backdoor had been. He removed charred wood and ashes from the tile floor. He saw a metal latch, charcoal black from the fire. He noticed a square indentation in the tile around the latch. He yelled out to his fire captain, “We may have something here!”
Percival and another lifted up the latch and peered into the depths. Percival’s flashlight illuminated a ladder descending six feet down to a concrete room. Cowering in the far corner of the room was a Hispanic woman. When the light lit up her face, she said, over and over, “No, please no.” Percival said in soft, tender voice, “We’re not going to hurt you Madam. We’re firemen. The blaze is out. You’re safe.” He pointed the flashlight to his face and fireman’s uniform.
“My God. My God,” sobbed Felicia.
“We’ll take you to the hospital. Just hold tight. I’ll get medics here to check you out.”
“Stay, don’t leave me!” responded Felicia between sobs.
“I won’t. I’ll go with you to the hospital.”
Jasco had been at the scene for an hour when he saw medics bring Felicia out. They told Jasco that she seemed to be in fairly good shape. Some smoke inhalation, a sprained ankle from the fall into the storm cellar, and a few bruises. She was still in shock. She kept asking about Lily. No one was going to tell her about Deputy U.S. Marshall Lily Perkins yet.