“Yes,” he replied gruffly, boring a hole through me with his eyes.
“Now, Mr. Bedrossian, please tell me which one of these photographs looks the most like the sports car.” The big screen showed a large sedan and a truck.
“Four-door car,” he said holding his stare. He had had enough of me.
“Now, Mr. Bedrossian, at the Oakland police department, before you gave a description of the shooter, you were shown a group of six photos, correct?”
“Yes.”
“And you circled two faces, one of Darnell Moore and one of someone else,” I asked, displaying the photospread on the screen.
“Yes. You see on the screen. Why do I have to speak?”
“And you told the officer that these two photos looked the most like the shooter, didn’t you?”
He smiled, as if planning my painful death. “Yes.”
“Then after you were shown the photographs, you were asked to give a description of the shooter, weren’t you, sir.”
“Yes.”
“And the description you gave was, quote, ‘young black man, light complexion.’ ”
“Yes.”
I paused, looking up at the six photos, all of young African American men with light complexions. “No further questions.”
“Re-direct, Mr. Didery?”
“Mr. Bedrossian, prior to the shooting, did you have anything against Mr. Moore?”
“No.”
“Had you ever seen him prior to that day?”
“No.”
“And sir, you realize the seriousness of the charges against Mr. Moore?”
“Of course.”
“Are you quite sure this is the man that you saw shoot out of his car?”
“No question,” he said earnestly. “Mr. Turner can try to change my wording. Doesn’t matter. And I’m sorry for his family. But this is the person who shot.”
Before Bedrossian was excused, I asked that he be made subject to recall in case I found a translator and needed to ask him further questions. Or if I finally found what I was missing…
On my way home, Damon called.
“Hey there. Did you make it in to see Jesse?”
“Yeah, I’m not sure that he’s going to go as far as naming the shooter. He’s in a tough spot. One thing he asked me is would your client get convicted if he didn’t name the shooter. I told him I didn’t know.”
“I don’t know either, but I’d hate to find out.”
“Yeah. Joe, in your experience, how much danger is Jesse in?” I heard the concern in his voice.
“Honestly, it’s very possible that his life is in danger. The bad guys know he’s in there on a witness warrant. That’s why I suggested protective custody, but I understand that has its own disadvantages.”
“Joe, what if you agreed to his release and—”
“Sorry Damon, I—”
“I know. Hear me out. I know he’ll come to court. He could stay with me and I would make sure he’d be there.”
“Damon, I feel horrible about this. But Jesse already failed to appear once. I wouldn’t be doing my best for my client if I agreed to his release.”
He sighed into the phone. “Okay. About his testimony, I think I could maybe make some headway with him if we were in the same room. The phones make it difficult to really talk to him. Is there a way I could get a contact visit?”
“Sorry, they’re only for attorneys. I can set you up with a video conference with him. Best I can do.”
“Okay, thanks.”
“Any progress on the interpreter?”
“Yeah, I think I found one in Fresno. Apparently, it’s an Armenian hub.”
“Okay, thanks Damon.”
“See you.”
****
Turbo felt the shank drop in the back pants pocket of his jail jumpsuit while in line for chow. He knew the rules. It had to happen within twenty-four hours, and he couldn’t get caught with the weapon before.
Turbo didn’t know that his shank was a shank. Before its current usage in prison parlance, the word originally described a metal piece inserted in the sole of leather work boots just below the arches. Turbo’s shank had been dug out of a guard’s extra pair of boots, stolen from his station by a trustee. The five inches of metal had been filed to a sharp point on the jail cement floor. One end was wrapped thickly in plastic tape to form a round handle.
Back in C pod, it was “pod time”, when the inmates were allowed out of their cells and into the common areas. Turbo had noticed that the skinny white kid usually stayed in his cell reading. Another Iceboy made eye contact and gestured toward Jesse’s cell. It would be standard procedure. Turbo would enter and take care of business while his partner stood in the cell door, preventing intervention, and acting as a lookout.
He gripped the smooth ball of tape in his palm, the sharp dagger protruding between his middle and fourth fingers. He walked from his corner cell across the pod with his partner in tow. The cell door was open. The kid was on his bed in the bottom bunk, reading.
****
Eddy and I had dinner and a movie planned for Thursday night, so after a workout, I got a head start on the cleaning. Next, I prepared for the hearing on the admissibility of the gun and began assembling the jury instructions. I was not looking forward to the conference with the judge on jury instructions. In deciding the correct instructions for the jury, Ludlow would have to have paid close attention to the facts, then apply the law correctly. He may as well be asked to bend spoons with his mind.
The aiding and abetting instruction was a problem. Even if I somehow convinced the jury that someone else in the car was the shooter, Darnell’s role as a driver would have him convicted of murder.
My phone alerted to an email at nine that evening. I knew the odds were good it was Didery, probably sitting with perfect posture still in coat and tie somewhere in a spotless home office. My stomach turned when I saw the subject line: “Ballistics Tests.”
I opened the email attachment and scrolled to the report’s conclusion: “Given the matches of both unique striations and impressions left on the sample shell casing and the specimen shell casings, the specimen shell casings found at the scene of the shooting were fired by the firearm found in the residence of the defendant.”
I stared at the page and re-read it, hoping for a different outcome. The evidence was now overwhelming. It was Darnell’s car, Darnell’s gang, Darnell’s motive, and Darnell’s gun. Bedrossian’s identification was window dressing. It was time to fold the cards.
I emailed Didery: Second degree murder for fifteen to life?
His response was almost immediate: Yes, but the offer is tomorrow only, prior to our hearing. Once the gun is in evidence, the deal is off the table.
I would visit Darnell before court. It was time for a come-to-Jesus moment. I was opening a bottle of wine when Eddy called.
“Hey, Busier, how was the pedicure with your sister?”
“Very fun. She was sorry not to meet you but only had a few hours in town.” She sounded more serious than usual.
“No problem, what’s up?”
“Well, remember how I told you I’d sent off some applications to colleges?”
I felt a knot forming in the pit of my stomach. “Yes.”
“Turns out, I just got an incredible offer from a university in Rome.”
“Wow,” I said, trying to muster excitement in my voice. “Rome, that’s awesome.”
“Yeah, I mean, I had no idea it would be this soon, but they want me to start in the summer term.” Her sentence hung in the air.
“Well, I mean, it’s Rome, so obviously you have to take it.”
“Yeah, I think I do. It’s sort of the home of archaeology. I mean I wanted to tell you in person, but I just felt like I should let you know and…”
“No, no. No need for that. That’s really exciting, Busier,” I heard myself say in a monotone. “Hey, listen, I should get back to this, you know, stuff I’m doing.”
/> “Oh, sure. Okay, I mean we’re on for tomorrow right? I want to talk about—”
“Uh, I’m pretty busy. I’m going to have to, um, pass.”
“Look, Joe, this doesn’t have to affect us, I mean it’s…”
“Uh, yeah it does,” I snapped, surprising myself with my own terse tone. “I mean, let’s be real, Eddy. It sure seems like it does. You’re moving to Italy, so that’s kind of it for us.” My words escaped out in a torrent, as if damned up before their release.
“Well, if you’d just let me—”
“That’s why you called, right? So you wouldn’t have to do this in person.”
“Joe, why are you doing this?”
“Why am I? Sorry, I have to go.”
“Okay, goodbye, Joe.”
I sunk down into the recliner and stared into space, feeling hollow. After a time, I tried to process the conversation. She said she wanted to see me tomorrow, but she couldn’t have meant it. That’s why she had shared the news on the phone, and I was thankful. I was better at wallowing on my own.
I went to the kitchen. Ice, gin, a splash of tonic and two gulps. Why had I allowed myself to think we could be an actual match in the long term? Part of me knew she would eventually end it. She was too perfect. God was she perfect—the way her blue eyes gleamed when she thought of a joke, our smiles sharing an unspoken language of our own. Two more gulps. I already missed the feel of her lips on mine, the sight of her hair spread on the pillow. Ice, gin, tonic, repeat.
Sure, she thought I was funny. “I have so much fun with you,” she had said the last time we were together, her depthless comment a tinny voice in my ears. For Eddy, I had been an entertaining little fling, nothing more.
Andy, Chuck, everybody saw it but me. Except that I had seen it. Deep down, I had been expecting it. Our end had been my nighthawk, circling high over the edges of my consciousness, its dark shadow flickering across my mind, always when we were apart. Ice, gin, repeat.
****
After two coffees and a large bottle of water, my head stopped pounding somewhere during the drive to the jail. On the way, I had second-guessed my handling of Eddy’s news. Her mention of Rome had somehow tripped a switch, and words had tumbled out without thought.
Arriving at court, I shook thoughts of Eddy away and headed in to speak with Darnell and convey Didery’s offer.
“I already know what you’re gonna tell me,” he said as I sat down in the windowless cell just off the courtroom.
“Yeah, Darnell, you probably do. They matched the shell casings at the scene to your gun.” I didn’t have the energy to lecture him about telling me the truth. Besides, that ship had sailed.
“Look, Mr. Turner.” He looked up with tears in his eyes. “I know you don’t believe me, but I didn’t do this. If I did, I’d take the deal, but admitting something I didn’t do…I just can’t do it.”
“Then tell me what happened, Darnell. It’s your only chance.”
He sighed deeply, wiping his eyes. “I was supposed to do it,” he began, staring into space. “They said I needed to kill me a Cashtown or I wasn’t one of them…that I wasn’t down for the struggle, a soldier, all that mess. One of them was in my backseat. I ain’t giving a name. I don’t care, I’ll die in here before I do that to my family.
“So, I’m driving over there and I’m, you know, having second thoughts. Like am I really gonna kill some dude I never met, who never did nothing to me? But I’m driving there, and I got dude in the back.”
“Were you both armed?”
“Yeah. So I drive up on ’em and my gun is out. I put it out the window, but I couldn’t do it. I just fired straight up in the air. Emptied the clip.”
“So your partner in the back did it?”
“I don’t know. I guess so. I just drove off, dropped him off.”
We sat in silence for several minutes while I digested his words. Firing in the air would explain the missing bullets and obviously mean that someone else killed Barlow. His partner’s shell casings weren’t at the scene, but they could have been ejected inside the car. Without Darnell’s testimony, though, the theory lacked even a shred of evidence.
Finally, his voice interrupted my thoughts. “There’s no way out, is there?”
“You never know,” I said. “Let’s keep fighting.”
“Hey, Mr. Turner, you okay?”
“Yeah, why?”
“Just seem like you’re having a bad day or something.”
“I’m good, thanks.”
Back in court, Didery was at the counsel table. “I assume no deal?” he asked without looking up.
“No deal.”
“I figured. Some guys just need to be convicted.” I missed the old Jittery Didery. The prospect of a quick guilty verdict was turning his nervous insecurity into a nerdy swagger. “By the way, I’m calling a jailer this morning who processed your client on the day of his arrest,” he said casually. “His body camera shows his forearms. Not that I need the extra evidence, of course.”
“Listen, asshole, keep your needle nose out of my confidential communications with my client.”
“Temper, temper, Joe,” he chastised in a creepy tone.
Whether it had been him or Bailiff Hardass who had overheard Darnell, I wanted to slam his smug smile into the counsel table.
“Hear ye, Hear ye…”
The elaborate call to order interrupted our tussle, and soon Deputy Evan Santoro was on the stand, educating the jury about how inventive inmates manage to give each other tattoos in jail. “Inmates are quite resourceful. For the tattoo gun, they take the motor out of a beard trimmer and attach it to the shell of a pen. For the ink, they burn cotton balls doused in baby oil and collect the soot. For the needle, I’ve seen guitar strings or straightened springs from inside a pen. It’s not safe but they don’t seem to care.”
“Deputy Santoro,” said Didery, after a pen tap, “let me know if you recognize the video I’m about to play on the screen.” The screen filled with a shaky video of Darnell being led down a hallway in the jail on the date of his arrest. His handcuffs were removed behind him as he faced the camera. Didery slowed the video as Darnell brought his hands in front of him and rubbed his wrists. The prosecutor stopped the video with Darnell’s left forearm clearly visible on the screen. There was no tattoo on the forearm.
“Yes. I recognize this as a video from my body-worn camera on the date of his arrest and the subject as the defendant, Darnell Moore.”
After I passed the witness, Didery tapped his pen twice on the counsel table then strode to the well of the court like a peacock, centering himself in front of the jury. “Your Honor,” the prosecutor started solemnly, “at this time I request that the defendant be ordered to stand and reveal his left forearm to the jury.”
Ludlow looked like he’d seen a ghost, sensing a legal issue at hand.
“No objection, Your Honor,” I said, easing his mind.
While a defendant could not be made to testify, it was a well settled legal precedent that showing a body part or even saying a phrase for the purpose of voice identification was not “testimonial” in nature.
“Very well,” said Ludlow, “Mr. Moore, please stand and show the jury your forearm.” Darnell complied. The black “G” showed prominently on his light skin. Juror number five, an African American software engineer from Berkeley slowly shook his head with a crooked smile of disdain. He, for one, was ready for his ballot.
“Your Honor, I have one more witness,” Didery said, beaming. “He is not available until Monday. I thought we could take up our legal issue this afternoon.”
The judge dismissed the jury until Monday and said he’d be back on the bench in fifteen minutes to address the motion to suppress. Still feeling the effects of my sad bender, I drained another water bottle and wolfed down a hotdog before returning to court.
Ludlow took the bench in the empty courtroom wearing a scowl. “Gentlemen, litigating a motion at this late date indicates a fai
lure of the parties to reach a resolution.” This was a uniquely stupid assessment, even for Ludlow. Never mind that he and he alone was the only reason for the delay, it was not a “negotiable” motion. Didery wanted the gun in evidence and I did not.
“Mr. Turner, please recite your argument for exclusion of the firearm.”
“Thank you, Your Honor. As the Court is aware, I have moved to exclude the firearm based on a violation of my client’s right to privacy. Specifically—”
“Mr. Turner, in my courtroom, I expect the attorneys to support their arguments with citations.” I had expected to have to spell it out for Ludlow, but this was extreme.
“Yes, Your Honor. I’m referring to my client’s right to privacy as guaranteed by the Fourth Amendment to the United States Constitution. ‘As warrantless searches of homes are unreasonable, the search of—’ ”
“Mr. Turner! Again, if you’d like a ruling on your motion, I must insist on clear citations!” I caught sight of Didery to my right, silently chortling to himself, reveling in my frustration. Ludlow didn’t care about citations. He was trying to find a non-legal reason to deny my motion.
“Okay, as the Court is aware,” I said, losing my patience, “the search clause of the Fourth Amendment to the United States Constitution protects warrantless searches and the exclusionary rule renders inadmissible any evidence seized—”
“Counsel, citations!”
“The exclusionary rule?” I asked, exasperated. “You want me to cite the exclusionary rule?” No one had cited it since law school because everyone knew the rule. “Um, I believe that would be Mapp v. Ohio, Your Honor. Since the gun was seized from a closet—”
“Mr. Turner, I don’t appreciate your tone,” the judge began calmly. “More importantly, that is not a proper legal citation!” he bellowed. “Since you continue to flout my clear instructions on citations, I have no choice but to deny your motion.”
“Excuse me, Your Honor?” This was a new low for Dudlow. “You’re denying the motion? Would the court care to articulate on what legal basis?”
“I’ve made my ruling.”
“Your Honor, with all due respect, I haven’t even—”
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