Collision Course (A Josh Williams Novel) (25 page)

One. An officer must never place themselves in a position that escalates a situation absent a legally valid reason to do so. This would include, entering into a location without adequate backup, entering into an unknown environment without proper preparation, or failing to provide notice of intent to fellow responders. High-level threat situations are dynamic and fluid. No guideline can adequately account for all possible circumstances; however, it is paramount that protection of the lives of all involved be the main decision factor. Officers are reminded that their oath to protect the public often entails risks."

"You can stop there, sir" Hawk interrupted.

Murphy put the file down.

"Now, sir, it is also safe to say that this section is familiar to you from your review?"

"Yes, I went through all the policies and procedures in-depth" Murphy answered, "It is how I formed my opinion," growing agitated.

"Would you please read the section that prohibits an officer from entering a building alone?"

"There is no such language, what there is..." Murphy answered.

Hawk interrupted, "Well then, in your testimony..."

"Objection, he isn't allowing the witness to finish his answer." Fleming interjected.

"He did answer. I asked him to read a section, and he stated there is no such language, sounds like we have a fully honest answer for once."

Rodericks looked at Hawk, "Save the editorial comments councilor, let the witness finish his answer before continuing," turning to Murphy, "sir, please confine your answers to the question asked. Continue"

"As I was saying, in your testimony you said that Sergeant Williams actions, a moment, I have it here in my notes, ah yes, you said 'was in clear violation of these policies’, yet you just testified that there is no such language prohibiting an officer from entering a building alone, so which is it?"

"Sir based on my thirty-eight years of experience in these matters, my professional evaluation of the total circumstances known to Sergeant Williams, as he reported, and the language in the policies and procedures of his department, of which he was aware, his decision was wrong and created what became a deadly situation."

"So this is really a difference of opinion, there is no language that prohibited Sergeant Williams from entering a building alone. You just don't believe you'd make the same decision, is that not true?"

"No sir, as I stated his decision was wrong." Murphy was again agitated.

"How many incidents such as this have you been involved in?" Hawk changed course.

"I have investigated several hundred..."

"That's not what I asked sir, I wanted you to tell the jury how many incidents, in which deadly force was used, that you have been involved in?"

"Well, I was fortunate in my career, as are most in law enforcement, never to have to fire my weapon during an incident."

"So your opinions and experience are a form of hindsight?"

"No sir, I have always based my review on the facts as stated in the reports, based on what the officers or agents reported at the time, not what may have been learned later." Murphy began to perspire a bit and finished the water.

“During your career, have you been injured in the line of duty?"

"Objection," Fleming stated, "where is this relevant?"

"I am trying to put a perspective on the extent of the professional experience your witness claims, suffering on the job injuries certainly gives one experience in the risks inherent in law enforcement" Hawk replied.

"I'll allow it," the Judge said.

"Yes, a number of times, it goes with the job." Murphy answered.

"Have you ever been shot?" Hawk asked, staring at Murphy.

Murphy crossed his arms and turned slightly away from Hawk.

"Your honor, is this leading somewhere?" Collucci was now on his feet.

"With the court's indulgence, this will become apparent as to its relevance."

"Mr. Murphy has already testified as to not being involved in any deadly force incidents, certainly being shot would qualify as one." Collucci argued, trying to win the upper hand.

"Your honor, if I may, expert opinions weigh heavily on a jury. The credibility of the expert is critical. I am allowed to explore that credibility."

Murphy became even more noticeably nervous. He knew what was coming.

"Objection is overruled, please answer the question."

Murphy looked down at his hands, rubbing them on his pant legs.

"Would you like me to repeat the question?" Hawk asked

"No sir, I was shot during a training exercise," Murphy replied, his voice barely audible.

"I am sorry. I couldn't hear your answer." Hawk moved closer.

"I was shot during a training exercise," Murphy repeated, eyes narrowing as he looked at Hawk.

"And how did that happen?" Hawk took delight with this one. He knew the jury would see him for what he was.

Murphy paused, took a deep breath, and said, "During a re-enactment of an incident involving an FBI agent taken hostage during an undercover operation, my weapon discharged, striking me in the left knee."

"And sir, was there a policy in place for insuring weapons were unloaded during such exercises?"

"Yes." Murphy’s voice, soft and hesitant.

"Well, I am glad to see you've recovered. Were you disciplined for this incident?" Hawk inflicted the wound, now going for the kill.

"I was suspended for thirty working days upon my recovery," Murphy whispered.

"But upon return from this suspension were you placed back in the same operational position?" Hawk asked.

"No, I was transferred to Headquarters." The answer accurate, but incomplete.

"So your new assignment was what?"

"Planning and Research," Murphy replied.

"Is that a field operational position, how long were you there?" Hawk was enjoying this. He knew Murphy as one of those behind the scenes, politically connected people that fucked-up, were taken care of, and spent the rest of their careers finding things wrong with the people doing the real work.

"It is not in the field. It is based at FBI Headquarters DC, and I was there until I was transferred to Professional Standards."

"Professional Standards, that's like Internal Affairs is it not?"

"Similar yes, we did good work there." Trying to regain some self-esteem and composure.

"And you retired at sixty-five years of age, isn't that much later than normal for FBI agents?"

Murphy went for the bait, "Agents considered being necessary to the operation or holding special skills can be extended to age sixty-five under the discretion of the Director of the FBI. I was considered important to the Office of Professional Responsibility."

"Who took over for you when you retired?"

Murphy looked up, angry, "the position has not been filled."

"So, this position was important enough for the Director to extend you five years beyond normal retirement, and then not fill the position for three years, not to this day?” Thus sealing the witness's fate as a political hack before the jury.

"Objection."

"Withdrawn. Nothing further." Hawk returned to his seat, leaned over to Josh and said, "That's how you inflict damage."

Collucci was glaring at Hawk as he whispered to Fleming "I'll bet one of those bastards in the local office fed that to Bennett. Sons of bitches, we need to try to save this guy."

Fleming looked at Murphy; saw his drained appearance, "He's not going to be helpful. Look, damage is done. They still have his report about the incident. He did not lose all his credibility. We can save him in our summary. I say let it go."

Collucci stood for a moment, hesitated, then said, "We have nothing further for this witness your Honor." Sliding back into his chair, he leaned into Fleming, "I am going to burn Hamlin like a bug in a bug light."

"
The
government calls Father James Swanson"

Collucci tried reading the jury reaction. This priest caught their interest. He could see it in their eyes; see the furtive looks between them.

Jim Swanson came into the courtroom, walking toward the witness box. He paused a moment to smile at Josh, entered the witness stand, took the oath, and sat.

"Good afternoon, Father Swanson." Collucci’s voice betrayed his anxiety. This was going to be the nail in the coffin. All he needed to do was guide the priest along. Bennett could object. It would not matter.

It would be out there for the jury to see. There is no such thing as, the jury will disregard. It was a joke, trying to put the toothpaste back in the tube.

He was going to enjoy this.

"Good afternoon, Mr. Collucci," Jim replied, not holding the gaze, looking blankly around.

"Now Father Swanson, would you please tell the jury your current assignment within the diocese?"

"I am the Pastor of Saint Domenicks Church in East Providence."

"And how long have you been there?"

"I've been at the parish for almost twenty years, the last five as pastor."

Collucci moved over to the front of the jury, forcing Swanson to look at him, giving the jury a better view.

"And Father, were you at Saint Domenicks on March 15, 2006?"

"Yes I was."

"Where were you around 4:30 pm that day?"

"I was in the Sacristy preparing some new vestments for Mass."

"And did you see someone come in the front of the church that day, a person you know as Anthony Machado?"

"Yes, I did. I heard the front doors of the church open and saw Anthony run in, go up onto the altar, and duck down."

"And did you see Sergeant Williams enter the church?"

"Yes, a few seconds later Josh, Sergeant Williams, entered the church.”

"Did you see a weapon in Sergeant William's hand?"

Jim looked over at Josh, dropped his head, and answered, "Yes."

"I'm sorry Father, could you repeat that, I couldn't hear you. Did you see a weapon?"

"Yes, Josh had a weapon in his hand."

"Could you still see Anthony Machado at this point?"

"Yes, I could see him behind the altar. I thought he was looking at me."

"Did he have a weapon?"

"Objection, calls for a conclusion by the witness," Hawk interjected.

"Sustained."

"Father Swanson, did you see a weapon in Anthony Machado's hands?"

"I couldn't see his hands, well I couldn't see both" Jim replied, trying to keep calm.

"So you could see one of his hands, correct?" Collucci was not letting him slide on this.

"Yes, his left hand."

"And did he have a weapon in that hand?"

"No, but I didn't know what was in the other hand." Jim became a bit more confident.

"Sir, I mean Father, that's not what I asked, once more, did Mr. Machado have a weapon in the hand you could see, his left hand?"

"No. However, I must tell you I was afraid."

"Thank you," ignoring the last part hoping the jury would as well. "Now where was Sergeant Williams at this point?"

"He moved to get closer to the altar, he yelled at Anthony to stop moving."

"Did you hear what he said?"

"Yes, he said...."

"Objection. Hearsay your Honor. He can testify that Josh said something but as to what he said..."

"Your honor there are well-known exceptions to the hearsay rule. One of which is independent corroboration. The reports in this matter do just that, reports prepared by Sergeant Williams. Father Swanson is testifying to what he heard Sergeant Williams say. Sergeant Williams's report is the independent corroboration."

"I will allow it, continue Mr. Collucci." Rodericks wrote some notes and looked over for Hawk’s reaction. He was smiling.

"Thank you, your honor. Okay Father, let me pose the question again, when Sergeant Williams approached the altar, his weapon pointing at Machado, you heard him say something?"

"Yes, he told Anthony to stop moving."

"Father, I realize this may be difficult for you, however I must remind you, you are under oath, what did you hear Sergeant Williams say?"

Jim looked at the jury, looked at Josh, took a deep breath and said, “Josh said, stop right there you motherfucker or I will blow that fucking hood off with your black head in it.”

"Oh boy," Hawk whispered, "I don't recall that as part of the report."

"I didn't say that" Josh protested. "I never said black head, I said head...at least I think I did."

"Well, it is out there now,” Hawk growled. "What do I do? If I argue it is wrong, the jury will pay more attention, if I ignore it, they think it is true. You didn't fudge the damn report did you?" Shaking his head.

"No," Josh protested, "I put what I said, as I remembered it."

Collucci let the statement sink in a bit, and then overplayed the hand, "So let me make sure I understand. Sergeant Williams, pointing a weapon at Mr. Machado, said 'Stop right there you motherfucker or I will blow that fucking hood off with your black head in it, is that correct?"

"Objection," Hawk was on his feet, "there is no testimony as to Josh pointing his weapon. Mr. Collucci is trying to incite the jury"

"Sustained, rephrase the question."

"When Sergeant Williams made that statement was he pointing his weapon at Mr. Machado?" Turning to enjoy the jury's reaction.

"No, he was not." Jim replied, "It was pointed in the air, away from Anthony."

Collucci snapped around, "Sergeant Williams had the weapon in his hand, did he not?"

"Yes, yes he did, but it wasn't pointed at Anthony."

"Thank you Father, but nevertheless, as far as you could see, the only weapon visible was the one held by Sergeant Machado, correct?"

"Yes," Jim responded, looking at the jury.

"How close was Sergeant Williams to Mr. Machado?"

"I'm not sure," pausing a moment, "about the distance from me to where Josh, I mean, Sergeant Williams is sitting. I'm not good at guessing distances." Jim looked at the Judge, "sorry."

"What happened next?"

"Anthony, Mr. Machado, started to move closer to the Sacristy door, I heard him say 'I tried to get him to stop', several times. He sounded as if he were crying or sobbing."

"What did Sergeant Williams do?"

"He was yelling at Mr. Machado to stop moving, but I couldn't make it all out. I was moving back away from the door. I didn't want to be seen," looking at the floor.

"Go on Father, did you see Sergeant Williams do anything else?"

"No, as Mr. Machado kept moving toward me, I saw him raise his right hand and start to turn toward Josh. I thought he held something in his hand. I was afraid," looking down at his hands, "I closed the door, a few moments later I heard the shots," pausing to take a breath. "I looked out once more and saw Sergeant Williams doing CPR on...”

"A moment Father," Collucci tried to derail the answer, "did you see anything in Mr. Machado's hand?"

Hawk was writing notes as fast as he could.

"I am not sure, there may have been. I don't know."

"So is it safe to say that at the time Sergeant Williams shot and killed Mr. Machado, you closed the door and could not see what happened?"

"That is true. I did not see the actual shooting. I did see Sergeant Williams doing CPR, trying to save Mr. Machado," Jim said, trying to soothe his conscience.

"Father, what did you do after the shooting?" Collucci was going to emasculate the man now that he was through with him.

"I am not proud of this," dropping his head, "I closed the door and went to the residence."

"You never told the police what you saw, did you?"

"No, I did not."

"And you didn't come forward until after you read about Sergeant Williams's indictment?"

"Yes, I wanted to let the police know what I witnessed. I wanted..."

"I have nothing further, your Honor," Collucci finished, dropping into his chair.

"Mr. Bennett, cross-examination?"

Hawk knew better than take any comfort in the smile on Rodericks' face. He was not smiling because Collucci snatched defeat from the jaws of victory. He was smiling because he took pleasure in any lawyer's failure.

Josh was not going to like what was coming, but it was necessary.

"Father Swanson, when did you first report you were a witness to this incident? It wasn't to the police was it?"

Jim blanched a bit then rebounded, this was expected. "I went to speak to the lawyer representing David Ventraglia."

"And who is that?"

"Steven Harris."

"You never went to the police about what you saw until you spoke to Steven Harris, correct?"

"Yes, I, have no way to explain. After I met with Mr. Harris, the FBI came and spoke to me. That's when I gave them my statement about being there and seeing what happened."

"Father Swanson, how did you come to know Anthony Machado?"

On one of those rare occasions, Hawk went with instinct over planning.

"He was an altar boy at the parish when I was a young priest."

Hawk knew from the eyes, there was more to this.

"How long was he an altar boy?"

"He served for three months."

Now there was no doubt.

"So you recall an altar boy from more than twenty years ago, that only served for three months? It seems odd wouldn't you say?"

"Anthony was special."

"Why was that?"

Once again, eyes betray.

"Anthony experienced some problems. His mother suffered substance abuse issues," looking at his hands, "and there were other things."

"Other things, such as?"

Hawk could see. He knew he was on to something. Instincts kept him alive in Vietnam, and they were right again.

"Anthony told me he was molested. I cannot explain more; it is under the seal of confession."

Once again, Collucci leaped before looking, assuming Jim was hiding something useful.

"Your honor, while there is some protection offered to penitents, Mr. Machado is dead as a direct result of the defendant's actions, we need to know what he may have revealed. Rhode Island law requires clergy to report matters of abuse learned as a result of confessions."

Hawk stood there a bit bemused. "Your Honor. I am gratified by my brother's support of compelling this testimony, and I concur. If Father Swanson learned of abuse within the course of hearing confession, he is required by law to report it."

Rodericks looked at some notes for a moment, "I am going to excuse the jury. This will allow the court time to consider this matter. Ladies and Gentlemen, you are excused for the day; we will reconvene Friday morning, 9:00 AM. Please do not discuss this case with anyone, otherwise enjoy your time off."

Once the jury left the courtroom, Rodericks looked to Father Swanson, "Father, are you aware of the limitation on Clergy-Penitent privilege in matters of abuse?"

"Yes, your Honor, I am. This confession took place over twenty-three years ago. The law was different at that time. I do not believe I am under any obligation to report that. Anthony is dead and it is of no benefit to him," Jim replied nervously, "I will seek guidance from the Diocese on this. However, I am disinclined to reveal anything more, with all due respect, to the court."

“Thank you for your candor, you may step down from the witness stand, for the moment, Father."

"Mr. Bennett, I am not sure I see the relevance here. If your purpose is to diminish the credibility of this witness, I do not see this as germane."

"Your Honor, if Mr. Machado suffered abuse, and told Father Swanson, it may reveal some motive for his actions in the church. The defense theory on this matter is that Mr. Machado's actions, even if we assume Sergeant Williams was lacking absolute knowledge of Machado's involvement in the robbery, were of such a threatening nature, and in total disregard of the lawful commands of this officer, that they in of themselves would be enough for a reasonable person to perceive a threat. If some psychologically significant event such as molestation, in fact, occurred in Mr. Machado's past, it could explain his irrational behavior, and support an objective perception that he was dangerous."

"And if the good Father is compelled to testify, and evokes the privilege against self-incrimination, where would that leave us, still without the information you seek and no avenue left to pursue." Rodericks closed his eyes, leaned back a moment and continued, "Mr. Collucci, what is the government's position on this?"

Collucci saw this as a way to bring even more sympathy for Machado. Not only is he killed for being black, but also a white priest failed to report his being molested by another white priest. Machado suffered for years from an uncaring, bigoted system.
This just keeps getting better
, Collucci thought.