Dying Declaration (7 page)

“Be seated,” he said softly.

Charles noticed that Nikki sat in the reserved seat next to the lawyer with the bad hair. She crossed her legs, slouched in the chair, and immediately began whispering to the lawyers on each side of her. She ignored Judge Silverman as he called the court to order, and she also ignored the bailiff who stared at her with a stern look, apparently trying to get her attention so he could tell her to quiet down.

Charles found himself staring across the courtroom at the tattoo partially visible on Nikki’s shoulder, and he was embarrassed when she noticed his gaze, looked straight at him, and flashed a brilliant white smile. He refocused his attention on Judge Silverman, who was preparing to hear the dozens of procrastinators who had just jumped in line to request a continuance.

He pretended that he had not noticed when Nikki winked.

11

NINETY MINUTES
later Nikki Moreno was still trying to catch his eye.
I’ve got to get a name and phone number.

“Call the next case, please.” Silverman had already been at it for an hour and a half, and the courtroom was thinning out. He had granted dozens of continuances and rejected dozens more. He had made sure that all indigent defendants filled out the proper forms to determine whether they qualified for court-appointed lawyers. And he had burned through more than fifteen traffic cases and three custody matters. Nikki’s services as a special advocate had already been called on twice.

“Commonwealth versus Thomas and Theresa Hammond,” the clerk said. “Case number 04-1489.”

The sleepy courtroom came to life. Cameras started rolling. Nikki’s head jerked up, and she nudged the grizzled old defense lawyer sitting next to her.

“This is your fifteen minutes of fame, Harry,” she whispered to the lawyer with the stringy hair. “Don’t screw it up.”

“Watch and learn,” Harry mumbled as he took his place at the defense table, joining Thomas and Theresa Hammond. Nikki would watch all right, with the same kind of morbid curiosity that compelled you to watch
Fear Factor
. It would not be pretty.

Deputy Commonwealth’s Attorney Rebecca Crawford took her place at the counsel table in front of the police officers and arranged her file. She had a no-nonsense look on her face, pretending not to notice the television cameras. But Nikki’s critical eye saw Crawford sneak a quick glance at the camera and then adjust her chair just right, so the camera angle would be straight on as opposed to a profile.

I guess she thinks that helps,
Nikki mused, not convinced that any angle could do the trick for Crawford.

“Mr. and Mrs. Hammond, you are charged with involuntary man slaughter and criminally negligent homicide in the death of Joshua Caleb Hammond. How plead you?”

Harry Pursifull rose to his feet and majestically buttoned his suit coat. The button strained but held.

“The defendants plead not guilty, Your Honor,” he announced.

Crawford quickly rose to her feet. “The commonwealth requests bail in the amount of two hundred thousand for Mr. Hammond and fifty thousand for Mrs. Hammond,” she said sternly, staring at the defendants. “This is the tragic death of a very young child who could have been saved if defendants had simply sought appropriate medical care—”

“Spare me your speeches,” the judge said. “We’ll try the case later. Are defendants a flight risk?”

“No, Your Honor,” Harry responded. “On the contrary, they have lived in the community their whole lives. Mr. Hammond runs a lawn care business—”

“Whether he mows lawns or not is immaterial,” Crawford snapped. “What is material is the fact that last night Mr. Hammond threatened the deputies who served him with the arrest warrant and told those same deputies that nobody was going to take his kids away. The commonwealth believes he is a substantial flight risk, Your Honor.”

“What about Mrs. Hammond?” the judge asked, his hands tented in front of him as he eyed the defendants. “Does the commonwealth believe she poses a flight risk?”

“Not necessarily, Judge. That’s why we’ve requested a lower bond for her. But we strongly urge that it be conditioned on foster care for the children pending trial. We can’t run the risk that she’ll neglect another child with similar consequences.”

Nikki watched the Hammond woman tug on the suit coat of Harry and whisper in his ear. Nikki could see the urgency on her face but couldn’t make out what she said.

“For these defendants,” Harry said, “fifty thousand bucks is like a million. This case calls for a PR bond, Judge. And Mrs. Hammond is not willing to give up the children under any circumstances.”

Crawford started to respond—she was always ready to respond—but Judge Silverman held up his hand and silenced both lawyers. He thought in silence, staring at the back wall for an interminable length of time, and then finally looked down at the deputy commonwealth’s attorney.

“Is there any evidence of child abuse?” he asked.

“You mean besides the child neglect that caused the death of Joshua?” Crawford asked snidely.

“Alleged death,” Harry shot back from the defense table.

“No, Harry, the death is not alleged; it’s very real.” Crawford turned on him. “If you want, we can go to the cemetery and I’ll show you the body.”

“Counsel!”
Silverman barked, his frustration showing. “Address your comments to the court.” He paused, changing his tone. “Is there any evidence of child abuse?”

“The commonwealth has a reasonable suspicion that such abuse has occurred. That’s why we subpoenaed the other children to court today to testify. We would request leave of court to interview those children in the presence of a court reporter, defense counsel, and a court appointed special advocate, to determine if such abuse has in fact occurred.”

“Are the children here?” The judge directed his comments toward Theresa Hammond. The woman’s eyes went wide, and Nikki immediately felt sorry for her.

Theresa stood slowly and nervously. “Yes, Your Honor,” she said, motioning to the back of the courtroom. “Right back there.”

As she pointed at the kids, all eyes turned to stare at them. The girl raised her hand in a timid little wave and smiled nervously. Her little brother slid down in his seat and stared at the floor.

“Very well, then,” Silverman said. “This case will be adjourned for half an hour while the children are interviewed. I will take the amount of bond under advisement pending the results of that interview. . . . Ms. Moreno?”

Nikki rose to her full height and stared directly into the camera.
Crawford should be taking notes,
she thought.

“Yes, Your Honor.”

“You will serve as the court’s special advocate for the children during this process.”

“Yes, Your Honor.” She sucked in her slender stomach and squared her shoulders. She would have to make it home tonight in time to watch the eleven o’clock news on the NBC affiliate. If they were smart and cared about ratings, they would use the video of her as their B roll.

She looked again at the two kids sitting all by themselves in the spectator section. The little girl was cute and prissy. She had bright eyes and curly blonde hair. She wore a tattered light blue dress and scuffed-up black dress shoes.

Her brother looked scared or ornery, Nikki could not tell. His blue pants were so short that they hiked halfway up his cowboy boots. He wore a stained white shirt and a clip-on tie. He had the biggest blue eyes Nikki had ever seen. And she thought she could detect a glint of moisture as he blinked hard to hold the tears at bay.

Those poor kids,
Nikki thought. They looked so innocent and naive. And they had no clue that they were about to be manipulated by the masterful cross-examination of a lady that defense lawyers called “the Barracuda.”

Tiger felt small in the gigantic conference room with no windows and the stern-looking adults. He climbed bravely into the high-backed leather chair where he had been told to sit. His feet dangled over the front edge, not touching the floor. He tucked his hands under his legs and stared down.

He determined not to look across the table at the woman who reminded him of a mean Sunday school teacher he once had. He did sneak a glance at the pretty lady named Miss Nikki, who was sitting next to him. His mommy told him that Miss Nikki was there to help him answer a few questions.

Miss Nikki shot him a quick smile, then reached over and rubbed his head. He hated it when people rubbed his head.

“What’s your name, young man?” asked the lady sitting across the table.

I thought she already knew.

“John Paul,” he said softly, with a slight hint of an attitude, still staring down. “My friends and family call me Tiger.”

“Can I call you Tiger?” the Mean Lady asked sweetly.

Who does she think she is?

Without looking up, he shook his head no.

“Well then, John Paul, we will need to get some ground rules straight. Do you see that lady typing over there?” The Mean Lady pointed to a lady typing on a tiny little machine. Tiger snuck a quick glance. “She is writing down on paper everything you say. And it’s very important that you tell us the truth. It will be very important for me. And it will be very important for your mommy and daddy.”

The Mean Lady paused to let the weight of the responsibility settle in on him. She did not have to tell Tiger this was important;
he could sense it. He was determined to pass this test, to get all the answers right. He knew that somehow his folks were depending on it.

“Now, do you know what it means to tell the truth?”

That’s an easy one.
“Yep,” Tiger said, pleased he was off to a good start.

“Do you know what happens if you don’t tell the truth?”

“Yep.” He nodded again, clearly on a roll. “I get a spanking.”

“Who gives you a spanking, Tiger?”

The little guy was so focused on the questions that he didn’t even notice she had used his nickname. These questions were easy, and he was anxious to answer.

“My daddy.”

“Does your mommy give you spankings sometimes too?” the lady asked.

“Yes, ma’am,” Tiger said. “If I’m bad.”

“And does your mommy hit you with her hand, or does she use a stick like some other mommies do?”

Tiger scrunched his face.
This is tricky.
“Nope,” he said.

“No, she doesn’t use her hand? Or no, she doesn’t use a stick?”

He was stumped again. This time he shrugged.

“Let’s do it this way,” the sweet voice of the Mean Lady said. “What does your mommy use to spank you with?”

“A wooden spoon,” Tiger said.

“I see,” the lady said, as she made some notes on her legal pad. “And how many times does she hit you with a spoon when she spanks you?”

These questions were getting harder. Tiger didn’t know he was supposed to count.

“’Bout four or maybe six,” he said, just to be safe.

“And your dad, what does he use to spank you?”

Should I tell her about the belt? Or will I somehow get my dad in trouble?
He looked at Miss Nikki, who smiled without opening her mouth. No help there. He looked at the fat little man in the room,
the guy they called “Harry.” He had his head tilted sideways like he might be feeling sorry for Tiger. No help there either.

“Sometimes his hand,” the clever little guy said.

“And other times?”

Tiger’s eyes darted around the room from adult to adult, searching for allies. Finding none, he stared back at the floor.

“And other times?” the Mean Lady repeated, this time without sugar in her voice.

How does she know about the belt?
“Sometimes his belt,” Tiger admitted. “But it doesn’t hurt very bad,” he added quickly.

“I’m sure it doesn’t,” the lady said, as she scribbled some more notes and frowned at her legal pad.

12

“YOU’VE BEEN SWORN IN
, Officer Thrasher. Why don’t you just tell me what happened,” Judge Silverman suggested, resting his chin on his hand.

It was nearly noon, and Thrasher had just taken the stand to testify against Charles. Judge Silverman had first required that Charles sign a document waiving his right to counsel, on the basis that Charles would act as his own lawyer.

“You know what they say about lawyers who represent themselves?” Silverman asked.

“That they’ve got a fool for a client,” Charles replied. “But at least in this case, he’s an innocent fool.”

“We’ll see,” Silverman said.

Charles felt his palms go moist as he sat at the defense counsel table, his right leg bouncing nervously up and down. Crawford and her entourage had returned to the courtroom and were waiting for the chance to resume the Hammonds’ hearing. Charles noticed Crawford squirming in her seat, signaling her anxiousness to return to center stage.

First,
Charles thought,
I’ve got some fireworks of my own.

He rose behind the defense counsel table just as Thrasher turned toward the judge to start his narration. “Before he does that, Your Honor, the defense would like to challenge the constitutionality of this statute.” His voice sounded louder than he had intended. It boomed through the courtroom and echoed back at him.

All eyes turned to Charles. Silverman raised a bushy eyebrow.

“You want to challenge the constitutionality of the Virginia Beach noise ordinance?” a skeptical Silverman asked. His chin still rested on his hand, and he added an eye roll at the request. It was getting late.

“Yes, I do, Your Honor.” Charles was nervous, but he was also getting a little irked. It was the court’s job to consider legal challenges, even for misdemeanors. He saw no reason for the judge to act so put out by the notion.

“On what basis?” the judge mumbled.

“Excuse me, Your Honor?”

“I said, on what basis?” This time Silverman took his chin out of his hand and spoke up. There was a slight edge to his voice.

I thought you’d never ask.

“The ordinance as written violates the free speech clause of the First Amendment, and as applied in this case, it violates the equal protection clause of the Fourteenth Amendment.” Charles pulled copies of cases out of his briefcase and dropped them on his counsel table. He noticed Judge Silverman eye the papers suspiciously.

“The ordinance requires that anybody using amplification equipment on the streets, sidewalks, or parks must first obtain a permit,” Charles continued, unfazed by the whispers and snickers behind him. “There are no objective guidelines for when the permit should be issued, leaving it in the total discretion of the city manager’s office. This creates an unconstitutionally broad prior restraint on free speech.”

Charles paused to let the concept sink in. Silverman obviously didn’t spend much time deciding constitutional issues, and Charles didn’t want to see the judge’s eyes glaze over. Better to lead him through it one step at a time, let him become part of the process.

“You want me to declare the noise ordinance in Virginia Beach unconstitutional so that anybody can then use loudspeakers and amps anytime they want?” Silverman asked. He raised both eyebrows this time.

“Only until the city rewrites the ordinance to include some objective standards for when to issue permits,” Charles responded. He wanted to say more, but instead he just picked up one of the cases he had placed on the table. From his years in judicial clerking, Charles knew that judges hated it when they thought a lawyer might know something they didn’t.

“Do you have any authority to support this rather bold claim?” Silverman asked, mesmerized by the papers in Charles’s hand.

Glad you asked.

“Yes, Your Honor. Several years ago the U.S. Supreme Court considered a very similar case. In
Kunz v. New York
, 340 U.S. at page 290, the Court addressed a New York ordinance that prohibited public worship on the streets without first obtaining a permit from the police commissioner. This man Kunz, a Baptist preacher, applied for a permit and was denied one because he had supposedly ridiculed and denounced other religious beliefs in his meetings, which, by the way, I never do.

“Anyway, the Court held that the statute was unconstitutional because—” and here Charles looked down at his highlighted pages,
carefully reading the words and giving them greater emphasis—“it gives an administrative official discretionary power to control in advance the rights of citizens to speak on religious matters on the streets of New York.’”

Charles looked up at Silverman in time to see the judge frown. “Let me see that case, Counselor.”

Charles walked up to the judge and handed him the file. He noticed that Officer Thrasher no longer looked so smug. Charles smiled at the officer and headed back to his counsel table. He waited patiently as the judge read every word of
Kunz v. New York
.

It was not her responsibility to prosecute misdemeanors, but the Barracuda couldn’t resist a good fight. Especially in front of the television cameras. The Hammond case was in the bag. The kids had given her everything she needed. She would nail down her bond request in a few minutes. But first, an unexpected chance to be a hero.

She had no love for Thrasher. He probably deserved this. But it never hurt to have the cops owe you a favor or two. And the thought of impromptu street performers on every corner of the boardwalk—unrestrained by a noise ordinance—was a nightmare. It was already bad enough when the teen agers drove around blasting their car stereos and boom boxes. This would be worse.

Who did this black man think he was anyway, waltzing into a Virginia Beach court—
her
court—and advocating chaos at the beach in the name of the Constitution? She had seen his sound equipment in the exhibit room. He might have a nifty little case from New York City, but this was Virginia Beach, and this guy was about to meet his match.

She rose from her seat in the front row of the courtroom, on the side where the police officers hung out—on the side of the law.

“Your Honor?” Crawford said.

“Counsel.”

“If it please the court, the commonwealth’s attorney would like to get involved in this matter, given the fact that the defendant is challenging an ordinance on constitutional grounds.”

“By all means,” Silverman said, taking off his thick glasses and rubbing his eyes. “The more, the merrier.”

Now it was getting complicated. A real lawyer on the other side. Charles loved a challenge, but not with his own criminal record at stake. He gave the deputy commonwealth’s attorney an irritated glance.

“Do you have a copy of the case for Ms. Crawford?” the judge asked.

“Sure—”

“Don’t need one,” Crawford said, interrupting. “Your Honor has already read the case. And, as Mr.—” She pointed at Charles,
apparently unable to recall his name. “As the defendant here has already said, the plaintiff in the
Kunz
case actually applied for a permit and was denied one. To my knowledge, this defendant—” and again she pointed at Charles,
annoying him to no end—“never even applied for a permit. How can he now challenge an ordinance as an unconstitutional prior restraint on his speech if he never even bothered to apply for a permit?”

Thrasher smiled. Silverman nodded. All heads turned toward Charles.

“Judge,” he began, palms spread, “the ordinance is unconstitutional on its face. It’s the procedure itself I’m complaining about. I shouldn’t be forced to use a flawed procedure in order to challenge it.”

“Oh, come on,” Crawford said. “Since when do we let citizens just waltz in off the street and challenge the constitutionality of ordinances for sport when they never even try to comply with them? This court’s got better things to do. Criminals to try. Bonds to set—”

“Okay, okay,” Silverman interrupted. “Here’s what we’re going to do. Courts don’t rule on the constitutionality of statutes except as a last resort. I don’t even know the facts of this case yet. Let me hear the testimony first; then if it’s necessary to rule on the constitutionality of the statute, I’ll do so at that time.”

Silverman glanced at his watch and stifled a yawn. “Is that acceptable to everybody?”

“Yes, Your Honor,” Crawford said.

“Not exactly,” Charles said.

Silverman sighed and ran his hands through his hair. “What do you mean,
not exactly
?”

“Judge, I’ve also got a selective enforcement argument.” Charles talked quickly, trying to get it all in before he was cut off. “They singled me out. Everybody else gets to use sound equipment and make as much noise as they want. But even a constitutional statute, if it’s applied with—” Charles picked up another case and began reading, speaking even faster—“an evil eye and an unequal hand, so as to make unjust discrimination between persons in similar circumstances,’ then it cannot be enforced.” He put the paper down and looked up.

“And I suppose you’ve got another case?” Silverman asked.

“Yes, Your Honor. The Chinese laundry owner’s case,
Yick Wo v. Hopkins
, where the city of San Francisco would not give permits to Chinese applicants to operate laundries.”

Crawford snorted so loud she sounded like a horse. “Of course,” she said sarcastically, “the old Chinese laundry case. This man is desperate, Judge. Last I knew, he had no desire to run a Chinese laundry. . . .”

The cops all smiled.

“I cite it for the proposition of law it contains,” Charles responded, turning and staring at the deputy commonwealth’s attorney.
“Every lawyer knows that.”

She walked to his table. “I wouldn’t want to miss reading this one,” she sniped as she snatched the copy from Charles’s hand.

“Counsel, address any comments to the court, not each other,” Silverman demanded. “Mr. Arnold?”

“Yes, Your Honor.”

“We’ll deal with that case after we hear the evidence as well.”

Charles nodded.

“Now, if you don’t have any more cases in that bag of tricks of yours, let’s hear some evidence.”

The Barracuda flipped the case on her counsel table and turned to Officer Thrasher. She and the officer had danced the witness dance before. She led. He followed. He had not always been so accommodating. After their first case together, she had dressed him down in front of his buddies in the hallway. A vicious shouting match that nobody won. But now he would follow her lead. Nothing fancy. He would just answer her questions.

After all, it was only a noise ordinance. How bad could it get?

After the preliminaries, she got right to the point.

“Had you ever met the defendant before the night of his arrest, Officer Thrasher?” She walked the entire well of the courtroom as she questioned the witness, her head held high. She used no notes, relying instead on her instincts and her formidable memory.

“No, ma’am.”

“Would you have any reason whatsoever to discriminate against him, or selectively enforce a law against him?”
Other than the color of his skin,
she thought to herself. Thrasher was not one of the most enlightened officers at the beach.