Copyright© 2014 by Jay Cantrell
The man on the witness stand had testified before. I could tell that from his answers to Tony Baker's direct examination. I could also tell that Baker had no chance to prep this guy and that the guy wasn't interested in being in the courtroom.
"Officer Scarborough," Baker began.
"Detective Scarborough," the man corrected.
"I apologize," Baker said. I saw his shoulders tense. He was getting no cooperation from his own witness. "Detective Scarborough, did you find yourself at a park opposite the Terrace Motel on the afternoon of June 19th?"
"I did," the man answered.
"And what did you observe?" Baker queried.
"I saw a known accomplice of Desmond Huntley, also known as Tiny Huntley, remove a backpack from beside a bench and replace it with another one," Scarborough answered.
"And you found this suspicious?" Baker asked.
"Of course I did," Scarborough said in a tight voice. "A man walks up to an unattended backpack, picks it up and exchanges it with one on his back. That just screams suspicious."
Baker gave a laugh. It was forced.
"Yes, I suppose it does," he said. "Is this the backpack?"
He held up the one that was once filled with drugs.
Scarborough shrugged before he answered.
"It is the same color and it appears to be the same style," he said. "But I cannot say with any certainty that this is the same one."
Baker had his back to the witness and I saw his face go red. This is not the sort of answer you expected from a prosecution witness.
"And what did you do next?" he asked, turning back to Scarborough.
"I am – was – undercover," Scarborough said. His anger wasn't abating. "As soon as I could safely do so, I made contact and suggested an 'observe and report' at the location."
"How soon did you manage to do this?" Baker asked.
"I don't know," Scarborough answered honestly. "Perhaps 30 minutes later. I can't give an exact time estimate. It could have been as little as 15 minutes or as long as 45. The park was not my primary objective. If it hadn't been one of Huntley's guys, I wouldn't have bothered at all. But my boss..."
He gave Elizabeth a pained expression.
"Or perhaps my former boss said Huntley is top priority, so I made the call," he concluded.
"Who is your boss?" Baker asked.
"Objection," I said, rising from my chair as protocol dictated. It took some time getting used to because family court is a generally low-key affair with few courtroom appearances. "Immaterial."
"Sustained," Castille said from the bench before I had even finished speaking. "Move on, Mr. Baker."
"Yes, Your Honor," Baker said. He really had no other questions for Scarborough so he tried to ask the same questions in a different way. Again, I objected and again Castille hammered Baker down before I could finish.
"Nothing further," he said. "The state calls..."
"Your Honor, I believe Mr. Baker is forgetting about my right to cross-examine," I said in a condescending tone. I learned it from Elizabeth, I'm sure.
"This is a preliminary hearing," Baker blustered.
"Which doesn't abrogate Ms. Wells' right to have her attorney cross-examine witnesses," Castille chided from the bench. "Go ahead, Mr. Wallace."
"Thank you, Your Honor," I said. "Detective Scarborough, I apologize for pulling you from your important duties for this fiasco."
"Your Honor!" Baker said.
"Yes?" Castille answered. "If you wish to object you must say so. This isn't your first day out of law school is it? Now sit down, Mr. Baker. Mr. Wallace, you may question the witness but please refrain from conversation – although the court echoes your sentiments."
"Sorry, Your Honor," I said. Scarborough fought back a smirk toward Baker and lost miserably. "Detective, did you see the defendant in the park?"
"No," he said. This was clear from the few notes in the file.
"Have you seen my client before today?" I asked.
"I don't think so," he answered. "I'm not sure what you mean?"
"Is she a known accomplice to anyone your office has an interest in or is investigating?" I clarified.
"No, I think it is safe to say that she is not a known accomplice to anything – except maybe those extortion schemes the schools use for fund-raisers. Two bucks for stale chocolate. It's criminal," he answered.
"I object," Baker said. "Non-responsive and outside the scope of direct examination."
"He asked what Detective Scarborough observed," I pointed out.
"Overruled," Castille said. "But the witness will refrain from offering asides – as humorous as they are."
Scarborough nodded and I continued.
"At any time did you lose sight of the backpack that you saw placed at the scene?" I queried.
"Yes, about 15 seconds after I saw it done, we moved on," he answered.
"So you cannot say with any certainty that the backpack entered into evidence is the one you saw that day?" I asked.
"Objection," Baker said again. His voice was becoming more strident. "Asked and answered."
"Sustained," Castille said.
I nodded. I had thrown Castille a bone, giving him an objection he could uphold without hurting myself.
"And you never saw my client with the backpack or any other backpack that day?"
"No," Scarborough answered. "Not that day, or I would guess any other."
I started to let him go but I saw Elizabeth motioning toward me. I conferred with her for a moment and turned back with a smile on my face.
"What is an observe-and-report request?" I asked.
"Just what it sounds like," Scarborough answered with a shrug. He was a good witness. A jury would like him and he parceled out information clearly. "I suggested they stake out the park and watch to see who retrieved the backpack. It is our usual procedure that we follow the suspect until a delivery is made and then make the arrest."
"It is not, then, your usual procedure to arrest a 14-year-old girl because she is the only person in the park?" I tried. I knew it wouldn't get through and Baker was already on his feet before the last breath left my mouth.
Scarborough walked right through it. He would be a gold mine for the defense if this came to trial. He shot a heated glare at Baker and answered anyway.
"No, that is not the procedure of professionals," Scarborough answered. "But it seems to happen when rank amateurs get their hands into things."
Castille again chuckled slightly but then upheld Baker's objection and had the answer stricken from the record.
The state called two other witnesses to the stand – one who testified about what was in the backpack and another who tested the contents. I let both go with only one question.
"Did you see the defendant in possession of the backpack at any time?" I would ask.
Baker would object – rightfully, because it was outside the scope of his direct questions – but Castille would overrule him.
"No," both witnesses answered. Finally it got to the arresting officer and I licked my chops. Elizabeth tugged on my sleeve urgently and I turned to her.
"Let me take the cross," she said from behind Lauren's back. "This guy is a real piece of shit and I will absolutely destroy him. He is scared to death of me."
I gave her a look that suggested that destroying people who work for you isn't the best way to win friends and influence people. Her gaze didn't waver so I relented with a nod.
"Detective Mann," Baker began. Elizabeth was on her feet in an instant but I couldn't figure out why.
"Objection, Your Honor," she said. "The state is overstating the professional rank of this witness. Willis Mann has not attained the rank of detective."
Castille raised his eyes at Baker as if to ask a question after glancing at his witness list. I finally figured out why she had circled the letters "Det." on my sheet. It had never occurred to me to ask until then.
"Mr. Baker?" Castille said, when it became obvious the prosecutor wasn't going to respond.
"Office Mann is on the promotions list," Baker said. "I used the term as a courtesy."
"Be less courteous and more precise," Castille said, silencing Elizabeth with a glance. "Is the witness, as of this moment, a detective?"
"No, Your Honor," Baker admitted.
"And he won't ever be once I get back there," Elizabeth said in a soft voice. Only Lauren and I heard it.
"Then the objection is sustained," Castille said.
"Officer Mann," Baker said with resignation. The look Mann gave Elizabeth was not pleasant. She simply smirked at him as if to say that isn't the last time today I'll hand your ass to you.
Baker walked Mann through the surveillance and the arrest. He left gaping holes because Mann wasn't prepared to answer them. Baker had assumed this would be a standard preliminary hearing and he would just have to hit the highlights.
Elizabeth made him pay for his oversight.
Mann was visibly unnerved when Elizabeth stood and motioned him back to his seat after Baker's questions. Like Baker, Mann was unprepared for cross-examination.
"Mr. Mann," Elizabeth opened.
"Objection," Baker, who wasn't even back to his seat yet, turned and said. "The witness is a sworn police officer. She should address him by his proper title."
"Your Honor," Elizabeth responded, "a point of law for Mr. Baker, if I might. 'Officer' is not a courtesy title recognized by the Courts. In point of fact, it is not a title, it is a job. Just as the witness and others should address me as 'Ms. Vargas-Wallace' and not as 'Attorney Vargas-Wallace' or 'Counselor Vargas-Wallace.' Until they achieve promotion to a supervisory grade, police officers should be given no more deference than the average citizen. It's second-year law, Your Honor."
"She is correct," Castille answered. "Objection overruled. Mr. Baker, do you need a glass of water?"
Tony Baker's face was so red it glowed. He had been caught with his drawers showing yet again – this time by a woman who would make his life a living hell in a few days.
"I'm fine, Your Honor," Baker said.
"Then, by all means, sit down," Castille replied. "Ms. Vargas-Wallace, thank you for your explanation. Please, proceed."
Elizabeth smiled graciously. She does gracious very well. In fact, the only thing I can think of offhand she doesn't do well is control her temper. That much was evident in her tone of voice.
"Mr. Mann," she said with clear disdain that wasn't lost on Castille. I saw his eyebrows rise slightly. "At any time did you see my client in possession of the backpack?"
"She was the only one there," Mann said.
"Your Honor, please instruct the witness to answer the questions I pose and not those he wishes to answer," Elizabeth ask the judge.
"What she said," Castille replied. He was growing rapidly tired of what Baker was trying to pull. That was evident.
"No," Mann admitted, glancing at Baker, who I noticed was looking anywhere but at the witness.
"Just so this is clear," Elizabeth said. "At no time did you actually witness Lauren Wells pick up the backpack?"
"Objection," Baker said. "Asked and answered."
"What part of 'Just so this is clear' did you miss?" Elizabeth said angrily, turning to Baker.
"Ms. Vargas-Wallace, I really don't want to have to tell you again to address your comments to the bench," Judge Castille said with a sad smile. "I will allow the witness to answer for the sake of clarification."
He nodded toward Mann.
"No," Mann said. "But she was the only person there."
"Yes, I've gathered that from your testimony," Elizabeth said snidely. "I wasn't aware probable cause for possession of narcotics had been extended to mere proximity."
She hurriedly asked a question before Castille could admonish her again.
"Then why was she arrested?" she asked.
Again, Mann looked toward Baker but Elizabeth had deftly moved to block his line of sight. I was impressed. I hadn't even noticed her do it and I would have to put that in my repertoire if, God forbid, I ever found myself in a real courtroom again.
"Mr. Mann?" Elizabeth prompted.
"I was instructed to arrest her by my superiors," Mann answered.
"A police lieutenant or detective instructed you to make an arrest of a 14-year-old girl for being near a backpack that might or might not contain an illegal substance?" Elizabeth asked incredulously. "Is that your testimony?"
"No," Mann said.
"No, that is not your testimony?" Elizabeth tried. She had rolled two questions into one – a no-no – but Baker was studiously studying his hands.
"That is not my testimony," Mann confirmed.
"Who ordered you to make this arrest?" Elizabeth asked.
"Your office," he answered. "I mean the district attorney's office, that is."
"Specifically?" Elizabeth asked. She had her back to Mann and was staring at Tony Baker.
"Mr. Baker," Mann replied with a sigh.
"Do you know why this arrest was ordered?" Elizabeth demanded. She still had her back to Mann.
"No, I do not," Mann told the Court. "But she admitted that the backpack was hers when I asked her. It was only after she admitted that it belonged to her that I took her into custody."
Elizabeth spun on her heel to face him.
"Did she have a parent present when you questioned her?" Elizabeth inquired.
"What?" Mann wondered. "I mean, no. She wasn't under arrest."
"She was a suspect whom you had been ordered to arrest," Elizabeth pointed out. "That means a parent must be present when questioned. It is red-letter law. Why was no parent summoned?"
"She didn't look under 18," Mann protested.
"But she is," Elizabeth informed him. "Far under 18. Did you ask for ID?"
"She said she didn't have any," Mann replied. He was frowning now.
"Did you ask her name and date of birth?" my wife shot back.
"I did," Mann told her.
"And? Did she give them to you?" Elizabeth asked.
"Yes," Mann admitted.