Dying Declaration (26 page)

“That information we do not have,” Ryder answered, looking down at his hands. “But we know that at least four of the
stops
were conducted by Officer Gage, and three of them were on black drivers. And we know that Officer Gage was working on the nights when most of these reenactments were done.”

The Barracuda took a step closer to the witness and raised her voice a notch, as if to punish the statistician for giving her a lengthy answer. “You weren’t personally there, were you Dr. Ryder? You weren’t out on the street watching these reenactments,
were you?”

“No,” Ryder said softly.

“So as far as you know, Officer Gage might have only seen this happen four times—three times with a black driver and one time with a white driver. He might have pulled over the driver
every single time
he saw it happen as far as you know, right?”

At last,
Charles thought.
She has stepped into the trap.
He could almost hear the metal snap shut.
Now let’s hope the prof has enough guts to spring it.

“No, that’s not correct,” Ryder said in his soft monotone. “Last Wednesday night, for example, he pulled over Isaiah Gervin,
one of the African American students. Every student who was pulled over was told to look at the name badge of the police officer and make a mental note of who it was. Isaiah noticed that it was Officer Gage, so he immediately called one of the white students in the class, who drove down to the beach with some classmates and was there within the hour—”

“Just answer the question,” the Barracuda interrupted. “We don’t need your speeches.”

“He
is
answering the question, or at least he was trying to before
he
was interrupted,” Charles interjected.

Judge Silverman looked at the witness. “You may finish the answer, but try to be concise.”

Ryder nodded, bobbing his big head on his thin neck like a bobblehead doll and pushing his glasses all at the same time. “As I was saying, while Isaiah Gervin watched from across the street, the white student did the same thing that Gervin had done an hour earlier—picked up a couple of passengers from the sidewalk and gave them a ride around the block. Like Gervin, this white student did this right in front of Officer Gage’s patrol vehicle. But this time, there was no stop. The simple truth, Ms. Crawford, is that the black kids were stopped, but the white kids were not.”

The answer was delivered with such soft-spoken bluntness that it seemed to double its force. Charles could see the muscles flinch, then tighten, on the Barracuda’s neck, the color of anger rising in her face.

“You weren’t there, were you?”

“I said I wasn’t.”

“So you don’t know whether Officer Gage might have been distracted when the white driver pulled his little stunt or might have seen the black driver look suspiciously around in a way that the white driver didn’t or might have realized that this was all a game being played by a bunch of law students or might have had any one of a dozen other legitimate reasons for not pulling over the white driver.
You don’t know, do you?

The heat of the question—she was practically shouting now—was absorbed by Ryder and defused with a single, soft, sincere answer.
“No, I have to trust what the students told me. But they’re right here in the courtroom.” He pointed to the spectator section behind Charles. “Ask them.”

“I’m asking you,” the Barracuda snarled.

“Objection.”

“Sustained.”

The Barracuda walked back to her counsel table, crossed her arms, and lowered her voice. “Your training is in statistics,
right, Dr. Ryder?”

“Yes, that’s correct.”

“Not in police work.”

“Right.”

“And is it fair to say that nothing in your education, training, or experience qualifies you to in any way second-guess the work of an experienced police officer like Officer Gage?”

“I wasn’t trying to second-guess him.”

“You could have fooled me,” the Barracuda said, slapping her notepad down on the counsel table and plopping into her seat.
“For a minute there I actually thought you were trying to prove that Officer Gage might have been involved in this nasty little business of racial profiling.”

This brought Charles out of his seat before he could stop himself. “I object to the sarcasm, Your Honor,” he said.

“Ms. Crawford, do you have any further questions?” Silverman asked.

“Not for this man,” the seated Barracuda huffed.

The judge released the witness. After one more push on the glasses, Ryder stepped down from the stand and scurried out of the courtroom, no doubt relieved to be heading back to the comfortable confines of academia.

41

AS RYDER BEAT HIS HASTY RETREAT,
Charles’s client leaned close enough so that his nasty breath had Charles holding his own. “Is that all we’ve got?” Buster asked.

“For now.”

“Impressive.”

Buster leaned back and gave Charles a menacing stare as Charles stood to announce that he had no more witnesses. The Barracuda then made good on her threat to recall Officer Gage.

“Now, Officer Gage, you earlier testified that the investigative stop of Buster Jackson was pretty much a joint decision made between you and your partner, is that right?”

“That’s correct.”

“And the other stops that Dr. Ryder testified to a few minutes ago, were they also joint decisions between you and your partner?”

“I’m sure they were. That’s the way we work. We do it together.”

“Did your partner ever suggest that you should
not
have made these stops?”

“No.”

“And if your partner had objected, would you have made them?”

“Not if my partner objected. He’s got much more experience than I do.”

The Barracuda paused for effect, looked at the judge to make sure she had his attention, then looked back at the witness for her last few questions.

“What’s your partner’s name?”

“Lieutenant Gary Mitchell.”

“How many years has he been on the force?”

“Twenty-four.”

“Is Lieutenant Mitchell black or white?”

“He’s African American.”

“Thank you, Officer Gage. That’s all I have.”

The courtroom was unusually still as Charles rose to his full height, walked around to the front of counsel table, and stared at the witness for a beat.

“I guess from your dramatic little interchange here with Ms. Crawford that you think having a black man riding along and concurring in your decisions makes everything fine. Is that what you’re saying?”

Gage managed a derisive snort. “That’s not it at all. I’m saying that my partner, who happens to be African American, concurred in pulling over your client, who also happens to be African American, because my partner knew I was doing it for reasons unrelated to race.”

Charles acted unimpressed, but his mind raced for answers. All that statistical information overwhelmed by one indisputable fact—one of the arresting officers was black. He glanced at the skeptical face of Silverman, the smug look of the Barracuda,
the cocky posture of Officer Gage. Charles knew it was a gamble, but he also knew he would lose if he didn’t try.

“Where is Lieutenant Mitchell today?” Charles asked. “Is he in this courtroom?”

Gage shot a wary glance at the Barracuda, then turned back to Charles. “No, he’s testifying in traffic court this morning. He couldn’t be in both places.”

“Then I request a brief recess so we might locate Lieutenant Mitchell and bring him in to testify,” Charles said. “With all the emphasis that Ms. Crawford has placed on his role in this stop, I think I might have a few questions for him.”

“Any objection?” Silverman asked Crawford.

The Barracuda stood. Charles knew she couldn’t object without looking like she was hiding something. “I guess not,” she replied.

“Very well then,” Silverman said. “This court stands in recess for fifteen minutes.”

The Barracuda took advantage of the break by finding Sean Armistead in the spectator section. He followed her into one of the conference rooms just off the main hallway. Crawford closed the door behind them.

“How’re you doing?” she asked.

“I’ve been better.”

So much for the small talk,
Crawford thought. She reached into her brief case and pulled out a manila envelope marked
Confidential
. She handed it to Armistead.

“There are wiring instructions in here for a bank in the Cayman Islands,” she said. “Two hundred thousand by the close of business today; two hundred thousand next Monday.”

Armistead nodded, refusing to look at her.

“Wire it straight from the Virginia Insurance Reciprocal account,” the Barracuda continued. “Don’t mingle it with your personal accounts first.”

“I’m not stupid,” Armistead said.

“I know, Sean. I’m sorry.”

“Are we done?” he asked.

“Not until we go over your testimony one more time. I can’t afford to have you blow it on the stand.”

Lieutenant Mitchell showed every one of his fifty-five years as he stepped up to the witness stand with painful deliberateness. He was hunched slightly at the waist, and he stared at Charles with sad and droopy eyes outlined in deep wrinkles that fanned out to every corner of his face. To Charles he looked like a man agonizing over a choice between “his people” and his partner. If Charles’s instincts were right, it was no accident that Mitchell had been in traffic court earlier.

Charles paced the well of the courtroom as he covered the preliminaries. Then he stopped in his tracks, strategically positioning himself to block the line of sight between the witness and Officer Gage. It was time to get down to the crux of the matter.

“You are aware, are you not, of a practice called racial profiling, Lieutenant Mitchell?”

“Yes, sir.”

“And you would agree that racial profiling—that is, stopping a black man just because he’s black and therefore supposedly more likely to commit a crime—has absolutely no place in proper police work.”

“Agreed.”

“Further, it’s demeaning to blacks because it stereotypes all blacks as being prone to commit crimes. True?”

“That’s true.”

Charles noticed a small bead of sweat forming in a wrinkle on the lieutenant’s brow. No sense waiting any longer. Charles took a deep breath, looked straight into the witness’s eyes—brother to brother—and fired away.

“Keeping that in mind, Lieutenant Mitchell, would you pull a black man over just because he happened to be driving a nice car with tinted windows and gave a couple of black kids a ride around the block? If that’s all you had, even if those black kids glanced around and hustled off down the street, would you pull the guy in the car over?”

Charles held his breath and waited. One second. Two. Three. Finally, the man spoke.

“No. If that’s all I had, I wouldn’t pull him.”

Charles softly blew out a breath and relaxed.
Quit while you’re ahead,
he told himself. Every good lawyer knows how important that is.

“Nothing further,” Charles said, turning for his seat.

Before he sat, the Barracuda was on her feet, popping questions. “Do you believe that Officer Gage engaged in racial profiling on the night he pulled over Buster Jackson?”

“Oh no, ma’am.”

“Did you in any way object to him pulling over Jackson?”

“No, I didn’t.”

“And as his partner, it was really a joint decision, right? In other words, if you thought there was any type of illegal racial profiling involved, you could have just said, ‘I don’t think this is a good idea,’ and he would not have pulled Jackson. Isn’t that right?”

“That’s correct.”

“And by the way, Officer Gage happened to be right, didn’t he? I mean, the defendant did have a whole car full of drugs, right?”

“Objection, assumes facts not in evidence.”

“Overruled,” Silverman said. Turning to the witness, he said, “You may answer.”

“Officer Gage was right. It was a good stop.”

“One more thing, Lieutenant Mitchell. You’ve worked with Officer Gage for how long as partners?”

“Four years.”

“In that time, have you
ever
known Officer Gage to say or do anything that revealed
any
prejudice against African Americans?”

At this question, Charles thought he detected the slightest flinch from the witness, and a quick blinking of the sad eyes.
“Never,” the witness said.

And without another word, the Barracuda sat down, her self-satisfaction obvious to all.

It was Charles’s turn again. His instincts told him to repeat the question. “Never?”

Another pause by the witness, but then a decision to honor the thin blue line. “Never.”

“Let me see if I can get this straight,” Charles said. “On the night of Buster Jackson’s arrest, you were in the squad car with Officer Gage, correct?”

“Yes.”

“And if you had been driving, and it had been your call, you wouldn’t have pulled Jackson over under the circumstances I enumerated earlier, right?”

“That’s what I said.”

“But it wasn’t your call; it was Gage’s call. And you didn’t object, right?”

“That’s right.”

“So on this one, you were basically just along for the ride?”

Lieutenant Mitchell’s shoulders straightened a little; he looked offended for the first time since taking the stand. “We were partners. I was more than just along for the ride.”

Charles felt the witness turning hostile and knew he wouldn’t get any further with this guy. “No further questions.”

With the evidence complete, the lawyers were invited by Judge Silverman to give a brief closing argument. It was hard for Charles to read which way Silverman was leaning, but at least the equivocal testimony of Lieutenant Mitchell had put Charles back in the game. A lot would be riding on the closings.

The Barracuda went first. “What will criminals and their clever lawyers think of next?” she asked. “As if the police don’t have enough to worry about in their fight against crime, we’re now going to send law students out to play elaborate games in front of the police and see how many of those law students get pulled over and investigated. And if the numbers work out right, maybe we can spring a few criminals based on alleged racial profiling.”

It didn’t take long for the Barracuda to get rolling, railing against criminals like Jackson and clever lawyers like Mr. Arnold. She derided the statistical analysis of Dr. Ryder as a game played by law students to justify a preordained result. The black law students probably acted more suspicious than the whites because they knew if they could just get the cops to pull more of them, then their professor could win his case. Law students must not be busy enough these days, the Barracuda opined. Back in her day, law students spent their time studying the law, not baiting police officers.

She highlighted the case of
Whren v. United States
. Charles lost count after she mentioned it five times.
Whren
this and
Whren
that; Justice Scalia said this and Justice Scalia said that. Charles had to hand it to her. She knew the lawyerly art of overkill. And the whole time, Buster Jackson was sitting next to Charles, squirming in his seat, throwing the Barracuda dastardly looks,
and playing the part of a vindictive drug dealer to a T.

Charles leaned closed to Buster’s ear. “Happy face,” he whispered.

“Shut up,” Buster said.

“Give the police officers the discretion they need to do their job,” the Barracuda said. “None of us were out there except for Gage and Mitchell. These are split-second decisions made by those risking their lives to keep our streets safe. Let’s not sit back and second-guess them in the luxury of the courtroom and further handcuff our officers in the fight against crime.”

Twenty minutes after she started, the Barracuda completed her “brief ” closing statement and sat down. Charles drew a deep breath, glanced fleetingly at his client, then stood to respond.

“This case is not really about Officer Gage or Buster Jackson or even the ability of police officers to do their job,” Charles said. “It’s about the Constitution. It’s about the rights of all citizens, black and white, rich and poor, to be treated equally under the law. It’s about making America a place where you could never be arrested for simply driving while black.”

As he spoke about the land of equality, he noticed Buster sit a little straighter in his chair. Five minutes of railing against racial injustice, and his client was actually nodding in a place or two. “Declare the days of Rosa Parks over,” Charles urged.
“Let African Americans know that they can ride in the front of the bus or the front of their own car without the fear of being treated differently. If our Constitution means anything,” he said, “it means that a man like Buster Jackson is entitled to the same equal treatment, the same dignity under the law, as the mayor of Virginia Beach or even the president of the United States.”