After more silence from the witness stand, Averill became visibly irritated. “Try looking over there,” he said, pointing to the defense table.
The defendant pulled his head down toward his shoulders, shrinking to make himself a smaller target.
Defense counsel jumped up. “Objection! Suggestive and improper! Motion to strike!”
Judge Foster raised an eyebrow. “Are you sure you want me to strike that, Counsel? You can’t think of a way to use that brilliant move in front of a jury?” he said, the word brilliant soaked in sarcasm.
Walter smiled. “Withdrawn.”
“Indeed,” the judge said.
By forcing the witness to focus on the defendant, Brandon had basically tubed his own case. Now, even if the surfer dude did identify the defendant, Schoenfeld would be able to tell the jury that the witness had been strong-armed into it.
The judge’s tone had been relatively mild, given his notorious distaste for all counsel. I figured he must have a soft spot for Walter. Judge Foster was a big man, six feet three barefoot and about 270 pounds. As smart as he was impatient, he didn’t need a microphone to be heard in court. When an attorney got on his nerves-a more than daily occurrence-you could hear it in the cafeteria, five floors below. I’d always liked him because, although he was a tough old bird, he was equally nasty to everyone. In my book, the perfect judge.
The witness did as he was told and looked straight at the defendant, who was so nervous I could hear him sweating.
“Nuh…uh, no,” the witness said in a thin, wobbly voice. “I seen him there, on the street, but I din’t see him stab nobody.”
“But isn’t it true that you told the police at the scene that this man,” Averill said, pointing to the defendant, “was the man who’d done the stabbing?”
The defense attorney was on his feet again. “Objection! Improper impeachment!”
But the judge waved him off. “Have a seat, Counsel. Maybe it is, and maybe it isn’t. But let’s cut to the chase, shall we? It’s just a preliminary hearing. No sense pussyfooting around.” The judge turned to the witness. “Did you tell the police this was the man who did the stabbing? Yes or no?”
The witness rubbed his soul patch, clearly torn. “Well…uh. Not exactly…Your…uh…Your Worship.”
“Just a simple Your Honor will do,” Judge Foster said. “Then what did you tell the police?”
“I just said I seen the dude,” he said, turning toward the defendant, a man named Yamaguchi. “He was, like, nearby, you know? But I din’t ever say I saw him, like, stab nobody, you know?”
Brandon Averill was red-faced. “Wait a minute, you mean you’re denying that you pointed out this defendant at the scene and told the cop that you saw him stab that guy?”
“Yuh…uh, yeah,” the witness said, casting a furtive look at the defendant. “I’m denying it.”
Brandon turned back to counsel table and shuffled through some papers as the courtroom again fell silent, waiting. Judge Foster had just opened his mouth to tell the prosecutor something he undoubtedly wouldn’t be happy to hear when Averill produced a report with a flourish and marched up to the witness stand.
“Isn’t that your name?” he asked, pointing to the top of the page. “Charlie Fern?”
The witness mouthed the words quietly. “Uh, yeah.”
“Then read this statement aloud for us,” the prosecutor demanded, pointing to a line on the page.
“Objection! Hearsay! What the cop wrote on that report is hearsay!” Schoenfeld shouted, again on his feet.
“It is,” the judge agreed. “Sustained.”
Brandon Averill’s mouth opened and closed without sound like a netted fish’s while he tried to grab hold of a thought. “It’s not admitted for the truth of the matter. It’s…uh, well, it’s offered to prove the witness’s state of mind.”
“And this witness’s state of mind is in issue because…?” Judge Foster asked, his tone sarcastic. “He’s here to identify the defendant as the stabber, true or false?”
“True, Your Honor. But I-,” Averill began.
The judge cut him off.
“There is no but, Counsel.” The judge’s merely annoyed tone of a few minutes ago had given way to truly pissed off. Of all the judges in the building, Brandon had picked the worst one to hear a case this weak, this poorly prepared. The only things Judge Foster hated more than unprepared lawyers were cases that were too thin to be in court. He’d called the district attorney’s filing unit more than once to “order” them not to file cases that couldn’t make it past a preliminary hearing. If a case wasn’t even strong enough to show probable cause, which boiled down to the standard of “more likely than not,” then it shouldn’t be in court, wasting his time.
Now he turned to Brandon Averill, his bushy brows pulled down, his voice ominously low. “Your eyewitness has denied making the statement attributed to him by the officer. If you want to get that statement into evidence, you’ll have to call the officer. This gentleman”-the judge gestured to Charlie Fern, who’d probably never been called that before in his life-“does not seem inclined to go along with the program.”
I could see the skin around Brandon Averill’s collar turn red. “Can I have a moment to call the investigating officer, Your Honor?”
“You may have exactly one minute, Counsel,” Judge Foster said, his voice beginning to rise. “In the meantime, I presume we’re finished with this witness? That is, unless defense counsel would like to try and change his mind?”
“No, thank you,” Walter Schoenfeld quickly replied. “No questions, Your Honor.”
The judge turned to Charlie Fern. “You’re excused, sir.”
Sir. I had a feeling this was yet another first for the redoubtable Mr. Fern.
I saw the bailiff, clerk, and court reporter brace themselves, having recognized the signs of an imminent eruption. Ordinarily I would’ve felt codependently nervous for the prosecutor, but Brandon Averill’s cavalier attitude had me actively rooting for an ass-kicking. I sat tall and suppressed a smile. How often in life do you get to see the right foot meet the right ass at kicking time?
Brandon walked quickly out of the courtroom, and when the door swung shut behind him, the entire place fell silent. Everyone looked away from the bench; eye contact might invite the judge to find a new focus for his palpably growing ire. Walter turned and whispered to his client, and the other waiting lawyers huddled and spoke softly among themselves. One minute ticked by, then two.
“Bailiff,” the judge intoned loudly, “please go and fetch our prosecutor.”
“Yes, Your Honor,” the bailiff said.
“And if he hesitates,” the judge added, “shoot to kill.”
The bailiff was smiling as he walked down the aisle, his rubber soles squeaking on the linoleum. Seconds later, he returned with Brandon in tow. The prosecutor was not smiling.
“Your Honor,” Brandon said, out of breath, “I need a recess to locate the officer.”
“No, Counsel, you may not have a recess,” the judge’s voice boomed.
The looks on the faces of Clerk Manny and the court reporter told me the festivities had begun. Manny grabbed the water glass he kept on the shelf above his desk, and the court reporter’s expression hardened as she prepared her fingers for flight.
“As you know very well, Counsel, the defense has a right to a continuous preliminary hearing. Do you see all these lawyers lined up here?” the judge shouted in his thunderous baritone.
Averill nodded. I noticed the tips of his ears redden, matching the skin above his shirt collar.