Until Proven Innocent (17 page)

The majority of people who’ve never been charged with a crime have difficulty in appreciating the tremendous anxiety and pressure that a defendant feels, but there is one slight example that even the straight and narrow citizens can identify with. It’s the feeling you get when a police car’s red lights go off in back of you while you’re driving down the street at night. The instant you suddenly realize that you’re being pulled over because the police think you’ve done something wrong, the feeling that it’s going to cost you time and money to get out of this mess… that’s a little what it feels like to be charged with a crime.

In a traffic situation, it’s all over in a few minutes, but when you’re charged with a serious crime and are facing a trial and possible loss of your freedom, it occupies your thoughts every waking minute of the day, and you desperately hope for something to come along to even momentarily take your mind off of it.

This is why I sympathize with my clients. Civil cases are a little different because the only downside is losing money, but the litigants to those civil cases also feel stressed. Every transaction between human beings carries with it a certain amount of emotion. Some are minor, like a handshake, making a sale, a peck on the cheek or other passing occurrences, but others require more positive or negative emotion. The most stressful are the loss of a loved one, being sued, and being arrested.

Because each client brings a certain amount of emotion along as baggage, it becomes the lawyer’s responsibility to sort out what is legal, fair, and reasonable conduct within the judicial system, and what is not.

One prime example is the type of case in which clients may be so emotionally driven that they make unreasonable demands on their attorney are domestic family matters. Separation, Divorce, Property Settlement and Child Custody are the most emotion-ridden matters handled by most lawyers. There have been more cases of in-court assaults and murders in domestic relations matters than in any other type of case going through the judicial system.

Whenever you hear of a person that goes from one attorney to the other during the course of a legal case, it’s probably because they are so driven by emotion that they make unreasonable demands on their lawyer… demands that are ultimately refused, for lack of propriety.

This is why I’m so happy that Tony is handling his arrest and charge of murder so well. If there’s anything I don’t need, it’s an emotional client who carries a gun. We both believe that because there’s no way to salvage the bullet that went straight through Joe Caulfield and into a concrete wall, the prosecution might not be able to prove that it came from the empty shell found in Tony’s gun. That sounds good to him, and I believe it myself, but neither of us is a ballistics expert, and the smoking gun is still waving in his direction.

The phone rings. It’s Myra.

“
What’s up Mizz Prosecutor? Want to have some dinner with me?”

“
No. I’m sorry Peter, but you might want to talk to your client about making a plea on this case.”

“
Oh please, give me a break. All you’ve got is a hero cop who was obviously framed. The jury will love him when he gets on the stand. There’s no way you can prove that the flattened bullet fragment you found was fired from his gun. That empty shell casing was no doubt planted in his weapon, and you can’t even prove that it was fired from his gun. Instead of my considering a plea, you should consider dismissing this entire miscarriage of justice.”

“
I can see that you don’t know much about tool mark identification, Peter.”

“
Say what? Toolmark identification? What does that have to do with this case? There were no tools used in this murder. Are you holding back on some evidence? You know, as defense attorney I’m entitled to be provided with whatever evidence you have on this case, whether it’s exculpatory or not.”

“
Oh Peter. For goodness sake, calm down. We’re not hiding any evidence from you. The purpose of this call is to give you the courtesy of some advance knowledge about what our investigation has turned up. One of our experts has concluded that the spent casing found in your client’s weapon wasn’t planted there. Not only did it have Tony’s fingerprints on it, which establishes the fact that he loaded it, but it also had a matching breech mark to other bullets we test fired from his weapon.

“
The people who examine markings on bullets and casings all belong to an organization called AFTE, which stands for Association of Firearms and Toolmarks Examiners, and they not only compare the striations on recovered bullets with rifling marks of guns, they can also analyze ‘tool-marks,’ the identifying features of fired ammunition.

“
When a bullet is fired, a mark is made by the firing pin. The force of the blast then pushes the bullet backwards, causing a breechmark. The toolmark examiners can use those marks to determine whether a spent shell was fired either from a weapon or planted there. In this case, your guy’s cannon definitely left its ballistic fingerprint on that empty casing. I’m afraid we’ve got him, Pete.”

“
Hold on, genius. All you may have proved is that his gun fired the bullet that left that empty casing. You still haven’t shown beyond a reasonable doubt that the bullet fragment scraped off that concrete wall came from the empty shell casing. There’s still a hole in your case.”

“
For God’s sake Peter, what do you want from us? A narrated videotape of the shooting? This murder case is no different than most of the others. All we have to do is get enough links in the chain to get a jury to believe the bullet that killed the victim was fired from your guy’s gun. And in this case, we’ve got it. They didn’t get along. They had frequent arguments. Your guy has a bad history with people of color. The wound experts will testify that the victim was hit by a .50 caliber bullet. Your guy has a .50 caliber gun that was recently fired. There was a spent shell in his weapon that was definitely fired by that weapon. Case closed. Checkmate. We’ve got him Pete, and the sooner you realize it, the better it’ll be for all of us, including your client.

“
Now, because of his distinguished police record, the fact that he may have been provoked during an argument, the heat of passion, yada yada, I’m willing to consider dropping the charge a little. Maybe we can go down to Man 1. Why not talk it over with him?”

My conversation with Myra ends without me mentioning to her that if I suggest to Tony he should consider making a plea even to the reduced charge of manslaughter, I might wind up being the victim in a second count of her murder case. If she’s got all the stuff she says she’s got, then I’ve got to invent some new process of ballistic investigation that can show that the empty shell in Tony’s gun had been fired at least two or three hours before the police arrived and took his weapon, making it impossible for him to have fired the fatal shot. I admit I’ve got a really limited knowledge of this ballistic science stuff, but common sense tells me that this will be an impossible task. I’m afraid that Myra actually has found the smoking gun for her jury… and it really was in my client’s hand.

* * * * * *

Chapter 10

I arrange to meet with Tony. If he didn’t put that empty shell casing in the cylinder of his gun, then someone else must have planted it there. Forget the ballistics junk. All we have to do is find anyone who might have had access to his gun. The time frame is even nicely narrowed down for us. He claims that he was on the range firing that day, so the casing must have been planted between when he finished firing, and the time he entered the soundstage. That’s only a window of about two hours, so now it’s time for him to relive every minute of that period, and we may find out who our killer is.

Tony’s preliminary hearing date is rapidly approaching, so we’ve got some work to do. A good thing about Tony being a cop is that he’s testified in hundreds of prelims. He won’t be testifying in this one, but I don’t have to make the same explanation to him that most clients require.

If the prosecution wants to bring a person to trial on a felony charge In the State of California, they have two choices: Indictment or Information. With an indictment, they go before the Grand Jury. If that group returns a ‘bill of indictment,’ it’s then straight to the Superior Court for arraignment and trial. Like so many others, this case will be going by Information, which means a preliminary hearing first, at which time the prosecution doesn’t have to establish guilt on the part of the defendant. All they have to do is establish that a crime has been committed and that there is reasonable cause to believe that the defendant may have been involved. The defendant is then ‘bound over’ for arraignment and trial in the Superior Court.

Defense attorneys don’t put up any fight at a preliminary hearing, because all they want to do is see the prosecution’s case and try to pick it apart, looking for weak spots. Quite often a criminal client will be disappointed that their attorney didn’t do more for them at the prelim, but Tony knows that a prelim is the prosecutor’s show, and I’m glad it is, because I don’t have any kind of show to put on for Tony.

If all the investigations come up dry, Tony’s trial will be a terrible disaster. Tony knows this too. I try to cheer him up a little. “You know Tony, the prosecution has the burden of proof. They’ve got to show beyond a reasonable doubt that you shot Joe Caulfield. You’re innocent until they prove you guilty, and I intend to make that as difficult as I can for them.”

His response is not what I expected.

“
You really believe that crap don’t you? You think that the prosecution thinks the same way? Listen here counselor, I was found guilty the minute they opened my weapon and found that empty shell casing. The only purpose of this trial is to give me a chance to prove that I’m innocent. I’m afraid you’ve got the phrase backwards.

“
I’ve been a cop long enough to know that the cops and prosecutors don’t have the time or ingenuity to railroad innocent people for crimes they didn’t commit. Sure there’s the rare exception of a bad cop or D.A. who’ll fabricate testimony, but I’ve never seen it happen here in L.A. County, so as far as I’m concerned, it’s not happening. There was no big conspiracy in the O.J. case, and there’s none here either. I’ve brought cases to the D.A.’s office on plenty of occasions and gotten ‘rejects,’ because they didn’t think they had a dead-bang winner.

“
The D.A., the judge, the jury, and probably you, all think I blew Joe Caulfield away, and that’s why I’ve got a whole team of good buddies working around the clock trying to find out who really did it. They’re the only ones I can count on. They’re the only ones who really believe I’m innocent, and your little kid is one of them.

“
You’re a professional, so I know you’ll do your best for me whether you believe I’m innocent or not, but you should stop once in a while and ask yourself what you really believe about me. Am I innocent until proven guilty, or is it the other way around?”

Tony doesn’t mince words. There aren’t a lot of places his thoughts go through on that trip from his brain to his mouth. I appreciate him for being honest with me about his feelings, and am afraid to say that he’s right about everything he just said, with one exception. I do believe that he’s innocent of this murder.

*****

The phone rings: I see Snell’s number on the caller ID display.

“
Special Agent Snell. How nice of you to call your favorite undercover agent. What can I do for you today?”

“
You’re not an undercover agent. You’re not an agent of any kind. You’re a cooperating witness, and the purpose of this call is to thank your little girl for letting us know that those other two DVD’s you ordered came in at your private mailbox place. She authorized the clerk over there to allow one of our lab people to pick them up.

“
The postmark on the first one you received was from the San Pedro district, but these two look like they’d been mailed from Van Nuys, so I guess they move around a lot to avoid bringing any attention to themselves in the local post offices. All we know for sure now is that even though the website and bank accounts are probably overseas, the main operation must be right here in town.

“
Oh, and one other thing. We did happen to find a useable fingerprint on one of the DVD discs. After sending it through every law enforcement database, we came up with a match. It was the guy your client wasted. Joseph Caulfield. Any idea how it could have gotten there?”

This opens up a whole new line of investigation for me, and for once I’ve got some information that the kid doesn’t know about. Racking my brain for any relevant fact that could possibly help on this case, I put together what looks to me like a reasonable theory, and just to see how it holds up, I try it out by explaining it. Unfortunately, the only audience I can put together on short notice is Suzi’s Saint Bernard, but he’s proven to be a pretty good listener in the past, so he qualifies.

First, the main two reasons that people get killed are love and money. I don’t think that Joe was involved in any love triangle, so I’m checking off ‘money’ in the motive box.

Second, his fingerprint appeared on a bootlegged DVD, so he might probably be involved in the piracy scheme. But if he was a bad guy, then he would have been doing the shooting, instead of being on the receiving end, so he must be a good guy. And if he’s a good guy, then he may have gotten killed because he stumbled onto what the bad guys were doing.

Joe mentioned that he was starting up a company that would do secure transportation and babysitting of first run motion picture prints. He therefore must have plenty of connections with people who move those prints around, and any one of them could be part of the piracy gang. It also answers the question as to how his fingerprints got into the ‘system.’ You have to get printed to be bonded, and the new film delivery company needed a bond.