Collision Course (A Josh Williams Novel) (24 page)

"
What
if I did shoot him because he's black?" Josh said, sitting at the bar at Hemenways.

"What are you talking about?"

"Maybe I do have deep-seated prejudice toward blacks."

"And why would that be?" Hawk raised his eyebrows, turning his head to face Josh.

"I was mugged once, well almost, at the Brown football stadium. I was eleven. We went to a game with my Boy Scout troop. I went underneath to use the bathroom and an older black kid grabbed me, put me against a wall and tried going through my pockets. Someone came along, and he let me go. I ran back and never told anyone."

Hawk put his hand on Josh's shoulder.

"Josh, several hundred Viet Cong tried to kill me at one time or another. I didn't like it much then, but I don't go around trying to kill every Asian I see. Do not let this guy mess with your head. This is all psychobabble political correctness bullshit. Now enjoy the drink and forget about the trial for the moment."

"There's something else." Josh added.

Hawk turned, facing Josh, "Now what?"

"It's a long story."

"I got all the time in the world, son. My martini is chilled, and I've nothing to do but listen."

"When I was in the Air Force, right out of Basic Training, I was assigned to the Security Police Training School at Lackland. We were assigned two to a room, and I ended up with a black kid from Baltimore named Nathaniel Archibald, we all called him "Archie."

Taking a drink from his wine, Josh continued, "We took the weekend off before training started so we just kind of hung around, drank beer, and relaxed. There was this kid from Texas; he was in the same Basic Training flight, sort of a typical redneck. Anyway, one day he gets me aside and says 'why you roomin' with the nigger?''

I thought he was joking so I said, 'What? Archie, he's a great guy.' I could tell by the look on his face the guy was serious, so I just walked away, I didn't say anything to Archie, and we never had any other problems."

"So, what is the issue?"

"I should have done something, punched the guy, anything. I mean, hell, growing up in Cumberland, we didn't have much contact with minorities. I think Archie was the first black person I ever spoke to in my life."

"Josh, punching some redneck wasn't going to change his ingrained prejudice any more than it would demonstrate your lack of such beliefs. I learned a long time ago not to let the past control you, other than learning from your mistakes."

"Wait, there's more."

"Let me get another drink," waving to the bartender.

"About a year after I got on the job, I pull up behind one of our Lieutenants on a car stop. This was an old school, World War II guy about a year before retirement. Anyway, he pulled over a car with four black guys in it. As I walk up, I say 'Hey L T, what do you have?’ He says, 'box of raisins, kid, niggers in a new ride.” Josh paused a moment, looking at Hawk.

"Box of raisins, I get it, so?" Hawk asked.

"I laughed," Josh looked into his glass, "I just laughed. I should have walked away, got into the car and drove off. But instead, I just laughed."

"Josh, let me bring you down to earth son. If you had done that, you'd have caught all sorts of shit for being afraid, or called a pussy, or some such label. Moreover, it wouldn't have made a damn difference to that moron Lieutenant. Look, there is nothing you have ever done to indicate you hold any more prejudices than anyone else does. We all have some fear or misunderstanding of things we have little exposure to. Over time, as you gain experience with people of all colors, shapes, and nationalities, you came to realize we are all the same. Things you did or did not do at nineteen are not an indication of a lifetime of bias. Nor does it have anything to do with this trial, you remember that."

Josh smiled a bit and continued to stare into the wine.

Maybe you do Josh, maybe you do. I was trying to tell you I did good...trying to get you to stop like I stopped Divothead...why didn't you hear me?

"
The
government calls Robert Murphy."

The witness came in the courtroom doors. Murphy, sixty-eight years old, dressed in a dark-gray suit, tidy gray beard, reading glasses dangling around his neck, walked with a pronounced limp to the witness stand, took the oath, and sat down. He looked the part of a banker.

"Would you please state your name and current employment for the record?" Collucci asked, deciding to handle this witness himself, warming up for the coming big show.

"My name is Robert J. Murphy. I am a Partner at Professional Standards Consulting, Incorporated."

"Would you explain to the court what Professional Standards Consulting is and your background?" Collucci looked to the jury, measuring their interest.

"Professional Standards Consulting focuses on assisting law enforcement agencies, both domestic and international, in developing standards for use of force by police officers, security forces, and other agents. I spent thirty-eight years with the FBI, the last ten of those assigned to the Office of Professional Responsibility. Upon retirement, I formed Professional Standards Consulting."

"With the court's indulgence, just a few more points" Collucci said, recognizing Rodericks’ growing impatience. “Mr. Murphy, what are your educational credentials and professional publications?" Collucci could see the jury was interested.

"I hold a Master's Degree in Criminal Justice from University of Chicago, a Juris Doctorate from Georgetown Law, and have published two books on use of force policy development. Both of which are used in a number of Undergraduate and Graduate level Criminal Justice programs, State and Municipal Police Academies, including the FBI National Academy."

"Your Honor, the government moves to have Mr. Murphy qualified as an expert in use of force as it relates to law enforcement."

"Mr. Bennett?"

"No objections, your Honor," Hawk replied.

"Mr. Murphy, let me draw your attention to government exhibit one. Are you familiar with this document?"

"I am"

"And would you please describe the document for the court?"

"Yes, this is a certified copy of the investigative file for case A-2013-9-2145. The Officer Involved Shooting of Anthony Machado."

"And did you have an opportunity to review this file?" Collucci looked to the jury, insuring they were listening. Juries pay more attention when they see you watching them.

Murphy nodded. "I did. I reviewed all the investigative reports in this matter."

"Did you undertake any other review of this matter besides reviewing the report?"

"I did. After doing a thorough review of the reports, I visited the site of the shooting and re-enacted the various actions reported by Sergeant Williams and the other officers at the scene."

"Now Mr. Murphy, based on your extensive background and experience, did you find anything about the reports that were of concern to you?"

"I did, if I may, a little background on appropriate use of force and the hierarchy of escalation of force would be helpful in clarifying my findings."

"Please, proceed,” Collucci retreated and stood next to the jury.

"Objection, this is turning again into story telling time allowing for narrative by the witness," Hawk argued.

"Your Honor, if it pleases the court, I will elicit this testimony through questioning the witness, but as a recognized expert, he is permitted to set an explanatory basis for his finding as defined in Federal Rules of Evidence, Rule 702." Collucci responded.

"Overruled, you may continue Mr. Murphy," Rodericks concluded.

"Over time, law enforcement agencies have tried to build a rational, understandable, and defensible use of force model for officers. The first of these is Use of Force Continuum. The concept is of an officer, starting with the minimum use of force, following the continuum of escalation until the lawful purpose is accomplished. These models were controversial in that some interpretations implied a requirement to follow the continuum regardless of the level of the threat present. The model, in most cases, conflicted with an objectively reasonable level of force.

Most agencies, and my consulting team, now rely on a force options model. This is more in line with court decisions. This policy provides a more realistic, and therefore safer, approach to use of force, both for the officer and suspect. By way of example, when an officer is facing an armed individual, it is objectively reasonable that he not go through a list of force options, voice command, baton, pepper spray, Taser, before resorting to deadly force, or at least the threat of deadly force.

The key point being agencies now develop and implement policies that give officers force options to deal with threats. The emphasis is still on using just the minimum force necessary to accomplish the lawful purpose, which may, in fact, be deadly force under some circumstances."

Pausing to take a drink of water, Murphy continued, "In this matter I reviewed reports from Sergeant Williams, Lieutenant Hamlin, forensic investigators, Medical Examiner, and Father Swanson. I also reviewed the policy and procedures, in particular, the use of force policy, of the East Providence Police in effect at the time of the shooting, and the department training records."

Collucci moved to stand between the jury and Murphy, blading his body to allow him to look between them, "And did you draw any conclusions from this analysis?"

"My review of the policy and procedures of the East Providence Police led me to conclude they are consistent with the most up-to-date recommendations of the United States Department of Justice and latest court decisions regarding use of force. These policies and procedures are also quite comprehensive in detailing tactical methodology for responding to high-risk level incidents such as armed robberies, hostage situations, and other matters.

My review of the training records shows that the East Providence Police use a multi-phase approach to training. Combining role call instructions, memos, and monthly reviews of training and policy matters. They conduct a mandatory situational shoot/don't shoot training session using the latest in available computer-based weapon's training. The records indicated that Sergeant Williams last participated in this training process the month prior to this incident."

Pausing again, Murphy looked at Josh and then turned toward the jury, "Based on this review, I concluded several things. First, Sergeant Williams was fully aware of the policy and procedures of the department regarding high-risk situations. Second, Sergeant Williams’s decision to enter the church alone, without assisting officers, nor waiting for a properly established perimeter, was in clear breach these policies. Sergeant Williams’s action was a tactical error of judgment absent any compelling reason to do so. This escalated the potential for a deadly force encounter. Third, by positioning himself as a direct threat to Mr. Machado, lacking any factual indication of his participation in the robbery, he again escalated the situation.”

Taking another drink of water, he noticed Hawk furiously writing notes.
As he spoke, he could not control glancing at the defense table.

“To summarize, based on the facts known to Sergeant Williams at the time, as reported by him, his decision to enter the church alone, position himself within an unavoidably dangerous proximity to Mr. Machado, was a significant tactical error. These actions escalated the situation and set in motion an unstoppable series of actions, leading to the death of an unarmed man.”

Josh noticed Murphy’s continuous glances at Hawk and leaned over to see what he was writing. Hawk looked up and whispered, “Psychological warfare, my boy. Just planting a little doubt.”

Josh smiled back, grabbed a legal pad, and joined in the fun.

Murphy continued. “If Sergeant Williams followed his training, the conclusion of this situation would be different," glancing at Josh, he reached for the water glass.

"Sir," Collucci asked in a voice measured and serious, "based on this review what conclusion did you draw from the fact that Sergeant Williams is white and Machado black?"

"Objection, your Honor.” Hawk was angry, "there is no basis upon which this witness is qualified to provide such an opinion. We have listened to his qualifications as to police procedures none of which shows any foundation on which he can somehow divine motives of another person. I have every intention of exploring the opinion Mr. Murphy has crafted as to his area of so-called expertise, but I object to his being allowed to testify as if he were clairvoyant."

"You Honor, if I may..."Collucci began.

"No you may not, Mr. Collucci. You can inquire and introduce the witness's expertise in the area of police procedures and its relationship to use of force. You cannot infer anything other than factual based opinions, not suppositions." Looking to the jury, "the jury will disregard drawing any inference as to the last question asked by Mr. Collucci. The objection is sustained."

Collucci walked back to his position at the government's table, "Nothing further, your Honor," a slight grin crossing his face. The damage done.

"Mr. Bennett, are you ready for cross-examination?" Rodericks asked, looking over his glasses.

"I am your honor."

Walking to the exhibit table, he retrieved the file marked Government Exhibit One, opening to a particular page, he looked to the bench, "May I approach the witness?"

"You may."

Handing Murphy the report, "Mr. Murphy would you read the first two paragraphs on that page?"

Murphy began to read them to himself.

"No, no Mr. Murphy, I am sorry, please read them out loud for our benefit."

Murphy looked up, over at Collucci, and then at Judge Rodericks.

"Please read them sir," Rodericks instructed.

Murphy removed his glasses, wiped them with a handkerchief, and began,
"The subject, later identified as Anthony Machado, saw our unmarked unit, turned around, and began to run toward St. Domenick's church. I immediately jumped from the car and began to chase Machado, radioing in my positions. Machado was running with a strange motion, and I thought he had a weapon concealed in his pants. Machado ran up the stairs and into the front of the church. I notified responding officers that I was entering the church and for them to set up a perimeter.

I decided to enter the church, as I knew Father Swanson was often in there during this time of the day. I was concerned there may be parishioners in there as well. The reports were that the suspect shot two individuals. As soon as I entered the church, I saw Machado hiding behind the altar, crawling toward to Sacristy. I looked around but couldn't tell if there was anyone else in the church. The only lighting was near the altar, and it was very dark."

Murphy put the report down and looked at Hawk.

"Now sir, you testified that you reviewed the policies and procedures of the East Providence Police and all the reports about this incident, is that correct?"

"Yes sir."

"And in your testimony, you said the policies and procedures were the latest and greatest, if I can paraphrase?"

"I said they met with the latest standards, yes sir."

"Now sir, the section of the report you just read aloud, is it safe to say you'd read this as part of your review?" Hawk was facing the jury, glancing back at Murphy.

"Yes I did. I read everything related to this incident." Murphy was becoming anxious, breathing quickly.

"Well then sir, in your opinion you indicated that Josh, Sergeant Williams, ignored his training, and his decision to enter the church a tactical error, I believe is how you phrased it?"

"It was an ill-conceived decision to enter the church absent any compelling reason to do so, and he chose to do this without assistance." Murphy answered, regaining composure.

"Sir, I am now going to show you government's exhibit twelve, do you recognize this document?" Hawk stood next to the witness stand as Murphy looked it over.

Murphy tried to hand the document back as he said, "Yes, it's a certified copy of the policies and procedures of the East Providence Police Department," holding the document out for Hawk.

"Oh no sir, you hold on to that, we have more reading exercises to complete." Walking over to the jury Hawk turned, folded his arms and said, "Please read page twenty-five, from the beginning."

Murphy flipped through the pages, came to page twenty-five, pausing a moment as he looked it over. Collucci and Fleming were trying to locate their copy to read it as well.

Hawk stepped back and looked at the two government lawyers, drawing the attention of the jury to them. Hawk looked at the jury and smiled.

"Your Honor," Collucci rose, "This document is already in evidence for the jury to review. I fail to see where this line of questioning relates to the witness' direct testimony."

Hawk started to speak but Rodericks cut him off, "No need Mr. Bennett. The defense is permitted to explore the basis of the witness's opinion. You may continue, Mr. Murphy, read the page as requested."

"
Section 2, Use of Force, continued. It is the primary duty of members of the East Providence Police Department to protect lives. There may come a time where the use of deadly force is both justified and necessary. Every reasonable effort to avoid such situations, within the confines of our responsibility to the public must be taken. The following guidelines are designed to assist officers in determining the correct course of action.