Forsythe objected, saying the question was already asked and answered during his direct examination. Forsythe was midthirties and lean. With a ruddy complexion and sandy hair, he looked like a surfer in a suit.
Judge Leggoe overruled the objection and let me go with it. Whitten answered the question.
“I didn’t believe it was necessary,” he said. “He was not a suspect at the time he voluntarily came into the station and then voluntarily entered that room for the interview. I was just going to take a statement from him, and he ended up saying he had been in the victim’s apartment. I was not expecting that.”
He delivered the answer just as I am sure he had rehearsed it with Forsythe. I moved ahead in the video to a point where Whitten excused himself from the room to go get my client a soda that the detective had offered. I froze the image of La Cosse left alone in the room.
“Detective, what would have happened if my client had decided while alone in there that he had to use the restroom and got up to leave?”
“I don’t understand. We would have allowed him to use the restroom. He never asked.”
“But what would have happened if he’d decided on his own to get up from the table at this point here and open that door? Yes or no, did you lock it when you left the room?”
“It’s not a yes or no answer.”
“I think it is.”
Forsythe objected and called my response badgering. The judge told the detective to answer the question the way he saw fit. Whitten composed himself again and fell back on the standard out: policy.
“It is the policy of the department not to allow any citizen unescorted access to work areas of police stations. That door leads directly to the detective bureau, and it would have been against policy for me to allow him to wander through the squad unattended. Yes, I locked the door.”
“Thank you, Detective. So let me see if I have this right so far. Mr. La Cosse was not a suspect in your case but he was locked in this windowless room and was under constant surveillance while in there, correct?”
“I don’t know if I would call it surveillance.”
“Then what would you call it?”
“We roll the camera whenever someone is in one of those rooms. It’s standard—”
“Policy, yes, I know. Let’s move on.”
I fast-forwarded through the video about twenty minutes, to a point where Whitten stood up from his seat and took off his jacket and draped it over the backrest. He then moved his chair in toward the table and stood behind it, leaning forward with his hands on the table.
“So you don’t know anything about her murder, is that what you’re saying?” he said to La Cosse on the screen.
I froze it right there.
“Detective Whitten, why did you take your jacket off at this point in the interrogation?”
“You mean the interview? I took my jacket off because it was getting stuffy in there.”
“But you testified on direct that the camera was hidden in the air-conditioning vent. Wasn’t the air on?”
“I don’t know if it was on or not. I hadn’t checked before we went in there.”
“Aren’t these so-called interview rooms nicknamed ‘hot boxes’ by detectives because they are used to sweat suspects and hopefully induce them to cooperate and confess?”
“I’ve never heard that, no.”
“You’ve never used that phrase yourself to describe this room?”
I pointed to the screen and asked the question with such surprise in my tone that I hoped Whitten would think I had something up my sleeve that he didn’t know about. But it was a bluff and the detective parried it by using a standard witness out.
“I don’t recall ever using the phrase, no.”
“Okay, so you took your jacket off and are now standing over Mr. La Cosse. Was that to intimidate him?”
“No, it was because I felt like standing. We had been sitting at that point for a long time.”
“Do you have hemorrhoids, Detective?”
Forsythe quickly objected again and accused me of trying to embarrass the detective. I told the judge I was simply trying to place on the record testimony that would help the court understand why the detective felt compelled to stand during the interview after only twenty minutes. The judge sustained the objection and told me to proceed without asking the witness questions of such a personal nature.
“Okay, Detective,” I said. “What about Mr. La Cosse? Could he stand up if he wanted to? Could he have stood over you while you were sitting?”
“I would not have objected,” Whitten answered.
I hoped the judge was aware that Whitten’s answers were largely bogus and part of the dance detectives engaged in every day in every police station. They walked a constitutional tightrope, trying to push things as far as they could before having to enlighten the hapless saps who sat across the table from them. I had to make a case that this was a custodial interrogation and that under these circumstances Andre La Cosse did not feel that he was free to leave. If the judge was convinced, then she would hold that La Cosse was indeed under arrest when he entered that interrogation room and should have been Mirandized. She could then throw the entire video recording out, crippling the DA’s case.
I pointed up to the screen again.
“Let’s talk about what you’re wearing there, Detective.”
I took Whitten through a full description for the record of the shoulder holster and Glock he was wearing, and then moved down to his belt, eliciting descriptions of the handcuffs, extra gun clip, badge, and pepper-spray canister that were attached to it.
“Your displaying of all of these weapons to Mr. La Cosse was for what purpose?”
Whitten shook his head like he was annoyed with me.
“No purpose. It was warm in there and I took off my jacket. I wasn’t displaying anything.”
“So you are telling the court that showing my client your gun and badge and the extra bullets and the pepper spray were not a means of intimidating Mr. La Cosse?”
“That’s exactly what I’m telling the court.”
“How about at this point?”
I moved the video forward another minute to the point that Whitten pulled the chair out from the table and put one foot up on it so he could really loom over the small table and La Cosse, who was shorter and more slightly built.
“I was not intimidating him,” Whitten said. “I was having a conversation with him.”
I checked the notes on my legal pad and made sure I had covered everything I wanted to get on the record. I didn’t think Leggoe would rule my way on this one but I thought I had a shot on appeal. Meantime, I had gotten in another round with Whitten on the witness stand. It better prepared me for trial, when I would really need to go at him.
Before ending the cross-examination I leaned over and conferred with La Cosse as a general courtesy.
“Anything I missed?” I whispered.
“I don’t think so,” La Cosse whispered back. “I think the judge knows what he was doing.”
“Let’s hope so.”
I straightened up in my seat and looked at the judge.
“I have nothing further, Your Honor.”
By prior agreement, Forsythe and I were to submit written arguments on the motion following the witness testimony. Pretty much knowing from the prelim how Whitten would testify, my document was already finished. I submitted it to Leggoe and gave copies to the court clerk and Forsythe. The prosecutor said he would have his response by the following afternoon, and Leggoe said she planned to rule promptly and well before the start of the trial. Her mention of her ruling not interrupting the trial schedule was a strong indication that my motion was going to be a loser. With its rulings in recent years, the U.S. Supreme Court had made new law when it came to Miranda cases, giving the police wider leeway on when and where suspects must be informed of their constitutional rights. I suspected that Judge Leggoe would go along to get along.