Dying Declaration (16 page)

26

TO SHAKE OFF VISIONS
of his wife, Charles Arnold immersed himself in legal research. But he didn’t like what he was finding. He had been researching for three straight hours, and his eyes kept coming back to the same case:
Whren v. United States
, decided in 1996 by the Supreme Court. The majority opinion was written by none other than Justice Antonin Scalia, no friend of criminal defendants. The
Whren
case would not make it easy to punch Buster Jackson’s get-out-of-jail-free card.

There were copies of court cases and law review articles scattered all over Charles’s desk in his small office at the law school. They joined two empty soda cans, a cold half cup of coffee, and a fat constitutional law textbook opened and highlighted. On one wall hung framed certificates and diplomas, on the other a Nerf basketball hoop. Charles hadn’t taken a shot in half an hour. The case staring at him from his computer monitor had drained his enthusiasm. He had a feeling that he would be hearing a lot about
Whren v. United States
at Buster’s suppression hearing.

It seems that poor Mr. Whren had been driving in a “high drug area” of the District of Columbia in a Pathfinder truck with tinted windows and a temporary license plate. Whren was sitting at a stop sign for about twenty seconds when a police car,
passing from the other direction, did a U-turn and pulled up behind him. That caused Whren, who was obviously not the sharpest tool in the shed, to gun the engine, turn suddenly to the right, and take off at an “unreasonable” speed.

The police officer pulled Whren over at the next traffic light and approached his car. As he did so, he noticed two large plastic bags of crack cocaine in plain sight in Whren’s greedy little paw. Whren was arrested and “large quantities of illegal drugs” were seized.

Whren’s clever defense attorney claimed that the stop and arrest violated the Fourth Amendment guarantee against unreasonable search and seizure because the stop was motivated by racial profiling as opposed to any real traffic violations. Besides,
the lawyer said, the use of automobiles was so heavily regulated that it was “nearly impossible” to comply with all motor-vehicle laws, thereby creating unlimited opportunities for the police to use traffic violations as nothing more than a pretext for stopping black males just because they were black.

Justice Scalia was having none of it. The great defender of law and order grudgingly conceded that the Constitution prohibited
“selective enforcement of the law based on considerations such as race.”
That’s big of you,
Charles thought. But then Scalia promptly gutted that principle by declaring that a decision to stop a vehicle is justifiable when the police have reasonable cause to believe a traffic violation has occurred or reasonable suspicion to believe that some other crime has occurred. Most important, Scalia rejected the notion that the actual motives of the police officers themselves made any difference. “We flatly dismiss the idea that an ulterior motive might serve to strip the agents of their legal justification for making such a stop,” he wrote.

In other words, even if Buster had been pulled over by Mark Fuhrman or by Hitler himself, if they had a reasonable suspicion for stopping Buster, it would not matter one iota how racist their motives were. Charles’s work was thus cut out for him. He would have to demonstrate that there was no reasonable suspicion that Buster had committed a crime. He would have to prove that Buster’s only offense was that he happened to be a black man cruising in a Cadillac Escalade SUV with tinted windows in a predominantly white area of Virginia Beach. Sure, Buster had given some young punks a brief ride around the block. Some young
black
punks. But that was no traffic offense, and that didn’t make him a drug runner.

If what Buster said was true—and that was a big
if
—this was racial profiling, pure and simple. Buster had done one thing, and one thing only, that had resulted in his arrest. It was an action that could not constitutionally justify an arrest, because it was an action that Buster really couldn’t do anything about. It was not the tinted windows. It was not the nice car he was driving. It was not even the fact that he had given a few kids a ride around the block. It was certainly not a traffic violation, for Buster had been driving like a nun. Buster had been pulled over, searched, and eventually busted for one reason and one reason only. Buster had been
driving while black
.

Easy to say, but because of Scalia’s Supreme Court opinion, it would be nearly impossible to prove. How could Charles show that the police had unfairly stopped Buster while white motorists with tinted windows were free to cruise to their heart’s content? How could he show that if Buster had been white, he would have been able to pick up a couple of kids and give them a ride around the block without harassment? In other cases, judges talked about statistical proof. But it was hollow talk,
because police officers didn’t keep records of who they stopped or who they didn’t stop based on race. They only kept records of who they charged. Thanks to the
Whren
case, proving racial profiling by statistics would be incredibly difficult and maybe impossible.

And even if he
could
prove it, did he really
want
to? A pang of guilt hit him, then another. He felt guilty for representing Buster, for trying to spring a man who was guilty as charged and ought to be spending the next decade making license plates. Then he felt guilty for feeling guilty.
Defense lawyers don’t think that way,
he told himself.
He
couldn’t think that way. He was not the judge; he was Buster’s advocate. It was his job to make sure the state could prove its case and could do so without violating the Constitution. Still, the guilt lingered, getting a man like Buster off . .
.

Then another thought hit him. Right there between pages 65 and 66 of Scalia’s opinion, which he was now reading for the fifth time. It was the thought of a defense lawyer, something Johnnie Cochran himself would have been proud of. He could turn this into a class project. He could set up his own experiment. Atlantic Avenue could be his laboratory; his students could be the guinea pigs. He could test whether Buster had been pulled because of his race and whether Anglos would be pulled for doing the same thing. And he would do it without ever once trying to get into the motives of the individual officers involved.

He would create his own statistics. If this
was
racial profiling, if Buster had been pulled for simply
driving while black
, Charles would get to the bottom of it. Charles would prove it. He had just figured out how.

And not even Scalia could stand in his way.

27

THE VIRGINIA BEACH CITY JAIL
brought back lots of memories for Charles Arnold—all of them bad. The slamming of the heavy metal doors, the smell of body odor, the dour looks of the guards, the absence of sunlight, and the pervasive dingy yellow haze of the fluorescent lights as he went deeper into the bowels of the place. It all came rushing back, reminding him of why he never wanted to return.

They escorted him past the cells, ignoring the catcalls of the men who had nowhere to go and nobody to see on another Saturday night. They took him to a small rectangular room with block walls, no windows, and a few dozen plastic chairs. About half the chairs were already occupied by slumping prisoners with surly looks—men who were sending every signal that they would rather be somewhere else, anywhere else, than in a Bible study in a jail on a Saturday night.

Charles did a quick visual survey of the room. All blacks with the exception of one burly white man, middle-aged, clutching a well-worn Bible in his large paw. Charles recognized him from court. It was the guy whose son had died for lack of medical treatment. None of the other men had Bibles or anything to write with or on. There was no chatter going on when Charles entered the room, just a show-me attitude as all eyes turned toward him. His buddy Buster stood in the back, leaning against the wall with his arms folded, as if he were guarding this brooding bunch against defectors.

Charles knew what had happened. Buster had turned out his posse against their collective will and probably under threat of force, and none of them were happy about it. Truth be known, even Buster probably would rather be elsewhere, but he undoubtedly saw Charles as his ticket to freedom and knew better than to alienate his lawyer. The white guy, on the other hand, was presumably here of his own volition. The only voluntary member of the bunch.

“They’re all yours,” the guard said with as much disdain as possible. He opened the door to leave. “I’ll be back in an hour.”

Charles passed out Bibles and made some introductions. He showed the men how to find the book of Luke and had them turn to the story of the crucifixion of Christ. He turned to the white man, who said his name was Thomas, and asked him to read the story of the two thieves crucified with Christ.

“Why don’t you start reading in chapter twenty-three, verses thirty-nine through forty-three. And the rest of you men follow along.”

The big man grunted his approval and started in. His voice was slow and halting as he pounded out the words with great difficulty.

“’And one of the malefactors which were hanged railed on him—’”
railed
became
righ’-eld
, the King’s English, mispronounced with a Southern drawl—“’saying, If thou be Christ, save thyself and us—’”

“Yo . . . yo . . . hold up, man,” one of the other prisoners interrupted. “Where’s that mess in my Bible?”

“Yeah, bro, you doggin’ us? What Bible you readin’ from?”

A few others murmured simultaneously. The railroad picked up steam, and all the brothers jumped on the white boy’s case.

“All right, hold on,” Charles said loudly. “Thomas is just readin’ out of a different version. He’s got the King James Version. That’s an old English language version. And I gave the rest of you the New International Version.”

Now Thomas’s eyes went wide. “They ain’t usin’ the King James?”

“No,” Charles replied. “I thought they’d understand the NIV better.”

Thomas furrowed his brow and looked around the room at his errant brethren. “It ain’t authorized,” he announced to them. “Only one version’s authorized.” He held his well-worn Bible aloft. “The King James.”

“That’s just a white man’s book,” one of the brothers said. “A cracker’s Bible.”

“You want
authorized
—” another brother said the word mockingly, with a tilting of his head. Then he stood and gave Thomas an obscene gesture—“authorize
this
.”

The blacks all laughed.

“What do you know about the versions of the Bible?” Thomas asked. “The King James is the
only
version with no translation mistakes.”

A collective groan went up from the others, all instant Bible critics. And thus was born the first theological debate of the Virginia Beach Jail Bible study: the King James—only debate. It blew hot and cold for about five minutes, with opinions running against the King James Version by a margin of about twelve to one. But the one was a stubborn one, and he had some information that was hard to dispute.

“So King James sent a couple hundred scribes back to their monasteries to work independently on a translation of the Bible into English. And guess what? They all came back with
exactly
—I said
exactly
—the same translation, word for word. Now, was God in that or what?”

“Translated it from what?” a brother asked.

Charles just smiled and let the debate play itself out. At least the men were engaged, no longer slouched down in a picture of apathy. After a while Charles suggested a compromise. Thomas would read each verse first from the King James Version, since that was the earliest translation. Then one of the others would read from the NIV. Then Buster would translate the verse into street slang. This seemed to satisfy everyone, and he had their attention as they turned back to the story of the crucified thieves.

Thomas performed his part with great gusto and authority, emphasizing every
thee
and
thou
in the King’s English. After another literate inmate provided a stilted reading from the NIV, Buster relished his role as the street translator and drew more than his share of laughs and critics.

It seemed like a circus, but they all got the gist. Two thieves had been crucified, one on either side of Christ. One of the thieves blasphemed Christ—“dissed” him in the words of Buster—saying, according to the NIV, “Aren’t you the Christ? Save yourself and us!” The other thief was repentant, asking Christ: “Jesus, remember me when you come into your kingdom.” Jesus responded to him, in the translation used by Thomas: “Verily I say unto thee,” which, as translated by Buster meant, “This is straight up from yo momma,” and assured the thief that he would be with Christ in paradise, or His “crib,” that very day.

Having survived the reading of Scripture, Charles took control to drive home some points. The boys had had their fun, now it was time to get serious. He paced and preached for twenty minutes without eliciting a single
amen
or even a grunt of approval. The inmates stared past him with cold and hooded eyes, slouched down in their chairs again like this was the most ridiculous stuff they’d ever heard. Occasionally, one of the men would challenge Charles.

“What if he didn’t do it?” one man muttered, referring to the thief who cursed at Christ with his final breath.

“Yeah, maybe he got set up.”

“Maybe,” Charles said. “Just like maybe some of the men in this room didn’t do anything wrong to get here. It’s all your momma’s fault for the way she raised you, or the hood you grew up in, or the drugs that made you crazy . . .” He stopped, paused,
and looked from one inmate to the other. “Get real.”

A few of the men grunted and slouched lower in their chairs. Their defiant stares betrayed the hatred that ran deep behind their eyes. Charles was defending the white man’s system and making no friends. He decided to focus on the love of God that saved the repentant thief just minutes before he died.

“This thief shows that you can’t work your way into heaven—that you don’t
need
to work your way into heaven,” Charles exhorted. “This thief confesses to Christ one minute, and a few minutes later he’s with Christ in paradise. Now I guarantee that man didn’t have much chance to climb down from the cross and do good works.”

From the looks on their faces, his point was lost on these men. Not many of them were apparently planning on working their way to heaven anyway. The mercy of God, the good works of men, it was all one huge yawn to this gang. They were apparently present only because their shot caller, for some reason unfathomable to them, made everybody come.

Charles glanced at his watch and decided to wrap it up.

“There is a concept in the law called a ‘dying declaration.’ It’s a statement made just before you die, when you know that you’re drawing your last breath. It works as a corollary to the hearsay rule. Any of you jailhouse lawyers know how this concept of a dying declaration works?”

He looked around the room at the blank and scowling faces. Some of these guys probably spent a lot of time in the law library,
trying to figure out new angles for their cases. Some of them would know more about the law than the lawyers who would be charged to defend them. But not one of them claimed to know anything about a dying declaration.

“You know what hearsay is, right?”

A few inmates nodded; the rest stubbornly refused to acknowledge the question. Charles the professor had some teaching to do.

“A statement made by somebody else outside of court cannot be repeated by somebody in court, even if they heard the statement. In other words—no gossip. A witness on the stand has to testify about what he saw, not about what someone else told him. Does that make sense?”

The same few heads nodded.

“And hearsay is not admissible because the person who made the statement is not in court and cannot be cross-examined to test the reliability of the statement. But there is one type of hearsay that is always admissible—anybody care to guess what it is?”

“A dying declaration?” Thomas guessed.

“This man’s a genius,” the professor responded, trying to encourage a little more class participation. “A dying declaration is admissible into evidence—and here’s why. People don’t usually lie when they know they are going to die the next moment. They are getting ready to meet their Maker and generally have very little incentive to shade the truth. So if you hear somebody make a statement just before he dies, you can come into court and testify about what that person said even though technically it might be hearsay.

“Which brings us back to these two thieves,” Charles continued. “These two thieves each made a dying declaration. One accepted Christ as Savior and Lord, and when God the Father judges this man in the courts of heaven, that dying declaration will save him. The other rejected Christ. And when the Father opens the books of judgment in heaven, that dying declaration will damn him to eternity separated from God.”

Charles paused for dramatic effect, stopped pacing, and lowered his voice. “Now,” he asked, “which thief are you? Because we’re all thieves, brothers. The only question is what type.”

He let the accusation linger. Then, as if on cue, a guard came busting through the door. “It’s time,” he said gruffly.

“We’re about done. Can we finish?” Charles asked. “You might want to stick around for this part yourself.”

“I said
it’s time
,” the guard responded with terse authority, staring at Charles with an air of cockiness that comes from never being challenged.
“Something about that you don’t understand?”

The eyes of the inmates, which just a few minutes earlier had been glued to the floor or some distant spot on the wall, were now focused on Charles. The boys hated the guards, and they longed for someone to put the guards in their place, someone who the guards could not retaliate against. Charles felt the dynamics, the men coming psychologically to his side, but he also knew that he needed to be a role model, to preserve his integrity.

“Oh, I understand it just fine,” Charles said. “So I guess the men and I better close out in prayer.”

“Just make it quick.”

Charles immediately began a lengthy and solemn prayer. He knew the guard probably had his eyes open, as would most of the inmates, but this did not stop Charles from praying for the souls of the men in the room with great passion. He prayed for their salvation, he prayed for justice in their cases, and he prayed for changed lifestyles once they were released. In a part of the prayer that probably infuriated the guard but greatly pleased the inmates, he also prayed for the souls of the guards. He prayed that God would help them understand that they were sinners too, just like these inmates, that there was no difference in God’s eyes and that they also needed to repent. He ended his prayer by praying that the guards would be merciful and just and that God would cause revival in the jail.

When Charles concluded his prayer, it was punctuated by more than a few
amen
s from the prisoners. Despite the growing impatience of the guard, Charles went around the room and shook hands with each man before leaving. Many of them promised to be back next week or said a simple, “Thanks, Rev.”

When he reached the back of the room where Buster stood, the big man put his arm around Charles’s shoulder and turned his body so they were both facing the wall away from the other inmates. Charles felt Buster’s enormous bicep and forearm resting across his neck, and the steel grip of Buster’s fingers on the outside of his shoulder. He was glad this man was his friend.

“Straight up,” Buster whispered. “How’s it look?”

“We’ve got a motion to suppress hearing a week from Wednesday,” Charles said in hushed tones. “I won’t lie. It’s gonna be a tough one.”

“Okay, bro.” Buster squeezed the shoulder. It hurt.

“Let’s go,” the guard barked. “Or this will be the last one of these things you have.”

This set off a round of critiques from the brothers.

“Loosen up.”

“Give the rev a break.”

“Chill.”

Charles locked on Buster’s eyes. “See you next week?” Charles asked.

Buster stuck out his lips and gave a slight nod of approval. “Ain’t goin’ nowhere else,” he said, “till a week from Wednesday.” He patted Charles on the shoulder, hard enough to get his point across, then donned the dangerous smile of an organized crime boss.

Charles left with the uneasy feeling that he had just been delivered an ultimatum. It would be hard to forget the hooded eyes and the gold-toothed smile of the shot caller for the Ebony Sopranos.