Grant of Immunity (6 page)

Y
esterday morning
his lieutenant had broken the news to Babbage. Internal Affairs had notified the captain that criminal charges had been filed against Babbage, based on the Erin Collins’s complaint. Babbage had to turn in his badge and weapon and was being suspended with pay pending his trial on the matter. Internal Affairs would not be interviewing him or scheduling any Board of Rights hearing until the criminal charges were resolved.

From the lieutenant’s office, Babbage went straight to Henderson, the union rep, who told Babbage that the union would hire a lawyer to represent him at all proceedings. An hour later, Henderson called Babbage. The lawyer was a hotshot named Anthony Giovanni, and Babbage better be early to his 10:30 appointment—the lawyer’s time was valuable, and the union didn’t want to pay for lawyer-time spent waiting.

Babbage arrived at 10 a.m.

The office was impressive.
These fucking assholes really know how to spend the union’s money
, Babbage thought, looking around at polished hardwood floors, fancy Persian rugs, and oil paintings, and hearing piped-in classical music.
But what kind of lawyer would work in a place like this—with flowery smells, leafy plants, and soft lighting?
He almost turned around and walked out.

But he couldn’t.

At 10:45, a secretary escorted Babbage to the lawyer’s office. Anthony Giovanni stood behind a huge desk and held out his pudgy hand. Giovanni was squat, flabby, and balding. He had a U-shaped fringe of dark brown hair, cut short. He was wearing a tight-fitting, buttoned, camel-hair sports jacket and blue wool pants, wrinkled at the crotch.

Babbage was not impressed. He shook Giovanni’s cold hand and sat down in a soft chair in front of the desk.

“Would you like a cup of coffee?” Giovanni asked.

“No thanks.”

Giovanni took out a legal-sized manila folder and studied it carefully. Finally, he looked straight at Babbage. “Let me give you some background on how we’re going to proceed. You don’t mind if I call you Jake, do you?”

“Whatever you like.”

“To begin with, at this time, I’m not going to ask you any questions about the allegations, and I don’t want you to volunteer any information about these charges. Instead, I’m going to wait until I’ve read all the reports and done all the investigation of the case against you, and then I’ll question you in detail.” Giovanni tapped his fingertips together.

“When I question you,” Giovanni continued, “it is absolutely critical that you be completely open and honest with me. I tell you this because you need to know that I will not allow you to get on the witness stand and say anything that I know to be a lie.” Giovanni paused to let this information sink in. “Any questions so far?”

So far, this out-of-shape asshole sounds more like the prosecution than the defense. But Henderson said the guy was okay.
Babbage would wait a little longer and see.

“If you’re not interested in my side of the story, what are we going to do today?”

“Today, we’re just going to discuss the case in general. I’ve read the reports and called the DA. I’m going to give you my appraisal of the case and suggest a strategy. Fair enough?”

“Go on,” Babbage said.

“All right. Here’s what’s happened so far. This woman, Erin Collins, alleges that you stopped her and threatened to arrest her for DUI and an outstanding warrant, unless she gave you a blowjob. She claims that because she was afraid and thought she had no choice, she complied with your demand, and you let her go. She’s filed a complaint against you with Internal Affairs, filed a police report, and cooperated with the investigators by telephoning to get incriminating statements from you.”

“She didn’t get shit,” Babbage said.

“I told you not to volunteer any information,” Giovanni said. “Goddammit, Babbage, there’s a reason for everything I do. Don’t shoot yourself in the foot by ignoring me. Please keep quiet until I’m done.”

Anger flared inside Babbage, and his hands clenched into fists. Nobody talked to him like that. These fucking defense lawyers all thought they knew everything, and that everyone else was as stupid as their gang-banging clients. Giovanni would find out soon enough that he was dealing with someone who knew which way the wind blew. Too bad he didn’t meet this shithead lawyer on the street. That’s where people found out what happens when you mouth off to Jake Babbage. But back to the present—he needed the fucker for the time being.

“Here’s the bottom line, Jake. You’re charged with oral sex under color of authority. In this state, that carries the same penalty as rape—three, six, or eight years with no probation possible.”

Babbage leaned forward, focusing his eyes on the lawyer.

“In order to beat this, you’ve got to either prove it didn’t happen, or admit it happened and prove consent. I can’t advise you about your case until I know what they’ve got. If they’ve got evidence that establishes this woman gave you a blowjob—such as DNA from semen swabbed from her mouth—then I’ll investigate the consent issue. Only after I know all these facts, and after I bring you up to date on what I know, will I question you. Now do you understand why I need for you to keep your mouth shut?”

Babbage was beginning to understand. Maybe this lawyer was not so dumb, after all. Giovanni would make sure that Babbage knew everything the other side had, make sure that Babbage knew what the best defense would be, and then and only then, would he question Babbage. Giovanni didn’t really care if Babbage lied, didn’t really care whether or not Babbage was guilty. The lawyer just wanted to cover his own ass and keep Babbage from saying anything before knowing what needed to be said for an acquittal.

“Okay,” Babbage said. “So now I know the rules. What happens next?”

“I’ve called the DA’s Office and spoken to the deputy who’s filing the case. Because you’re a cop, they’ve agreed to release you on your written promise to appear, and not require you to put up bail money, provided you surrender today at one-thirty p.m. and get booked and fingerprinted. The arraignment is a week from Monday, on July third, in Division 30 in the Criminal Court’s Building.”

F
itz thought
about the last few weeks. He marveled that they’d actually made it to trial. It had been a continual struggle with Erin, but Sean had been a godsend. Erin kept changing her mind about whether or not she could go through this all. Fitz and Sean kept reassuring her that she had to persevere. After all, Sean told her, even if she didn’t care about herself, how about other women that Babbage would surely victimize?

As part of his preparation for trial, Deputy District Attorney Lundy had not run Erin’s rap sheet. When Fitz objected, Lundy explained that he wasn’t concerned about Erin’s arrest record because California’s victim anti-blame law protects sexual assault victims and does not allow the accused to go into arrests and sexual background of their victims. The open DUI warrant—called a bench warrant, because a judge issues it from the bench when a defendant jumps bail and doesn’t appear in court when scheduled—was a different matter and had to be resolved immediately. Fitz and Lundy met with Erin’s public defender, and the three of them went to the issuing judge. The warrant was recalled, and a date and time was scheduled after the Babbage trial for Erin to surrender in Van Nuys.

Fitz asked Lundy when he was going to go over testimony with Erin.

“I don’t do that,” Lundy said. “That way the testimony is spontaneous, more impressive to the jury.”

Fitz shook his head. “No, you need to go over what Erin is going to be asked. Give her tips on possible cross-examination. She’s very nervous and that will make her feel more in charge.”

“Absolutely not,” Lundy said. “Besides, there’s nothing to worry about—the case is a slam dunk.”

As the trial approached, Lundy continued being confident, But as late as yesterday morning, before court, Erin called Fitz to say that she couldn’t do it—couldn’t testify. Fitz called Sean and the two of them went to her apartment to support and reassure her. What she was doing was difficult, but important, they told her. If she could stand up for herself now, she could end being a victim. And she’d be saving other women who would be victimized if Babbage weren’t stopped. When Fitz and Sean left, Erin seemed more determined, and even ventured a smile.

Fitzgerald watched as the jury filed into the courtroom and took their places in the jury box. The trial was moving along quickly. Jury selection had taken only two days. Opening statements had been heard that morning and early afternoon. Erin would be the only witness, and Fitz was concerned. He’d asked around about Babbage’s lawyer, Giovanni. Word was that Giovanni was a clever son of a bitch. He specialized in defending cops and was very effective.

Giovanni had waived the preliminary hearing six weeks ago, and Fitz was troubled about that as well. Giovanni had something up his sleeve, and Fitz worried that the eight-woman, four-man jury might not understand why Erin was so terrified of arrest that she could be intimidated into giving a cop a blowjob.

Erin had asked Sean not to observe the trial. She was going to be nervous enough recounting the sexual details of what happened that night in front of complete strangers. Having her brother present as well would be too much for her. Sean understood.

Fitz gave Erin a reassuring nod when the judge entered the room.

“Call your first witness,” Judge Catherine Morley, a middle-aged black woman with salt-and-pepper gray hair, said.

“The People call Erin Collins, Your Honor,” DA Eric Lundy said. Fitz had asked Lundy earlier about Morley, and the news was mixed. “If Babbage is convicted,” he said, “you can be sure that Morley will max him out. But she’ll force us to prove our case. If we don’t, it’s all over.”

Now, in the austere fluorescent light of the courtroom, Fitz watched as Erin made her way to the witness box. Her dark hair was pulled back in a bun, and she wore a conservative, but attractive, charcoal-black pants suit with a light-blue cotton blouse. How could the jury not like her?

But her complexion was pasty, and she had that nervous look he’d so often seen in victims who testified. Victims who were powerless during the crime and now powerless in court. At risk again of being manipulated—this time by lawyers. Before sitting in the witness box, Erin turned toward the court clerk and raised a shaking right hand.

The clerk asked, “In the cause now pending, do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”

“I do,” Erin said.

“Please be seated. State and spell your full name for the record.”

Erin obeyed.

Lundy began his direct examination from his chair. “Ms. Collins, I’d like you to remember back to June thirteen of this year, around two-thirty a.m. Do you remember the events of that evening?”

She leaned forward, looked at Lundy. “Yes, I do.”

“Please tell the jury what happened.” In a flat voice, Erin described how she’d been stopped by Babbage and how he’d administered field sobriety tests to her.

“And then what happened?”

Erin paused and took a breath before answering. “He told me”—another breath—“that if I would … if I’d give him a blow … er, I mean … if I’d orally copulate him, he’d let me go.”

“And did you orally copulate him?”

“Objection, Your Honor,” Anthony Giovanni interrupted. His voice was loud, irritated. “The prosecutor’s leading the witness.”

“Sustained,” Judge Morley said.

“What happened next, after he told you that?” Lundy asked.

Erin straightened in her chair, cleared her throat. She folded her arms in front of her as if shielding herself from Giovanni’s anger, from Babbage’s stare and said, “I was afraid. I didn’t know what else to do. So, I … I performed oral sex on him.”

Fitz silently sighed with relief. She’d said what she’d been dreading to say. They had gone over this again and again, looking for ways that Erin could say what happened in a way that wouldn’t embarrass her in front of a room full of strangers. She couldn’t bring herself to say “blowjob,” but “oral copulation” seemed too clinical, too foreign. But Fitz knew her real ordeal had not yet begun.

“And then what happened?” Lundy asked.

“He left, and I drove home.”

Erin described how she had discovered semen on her blouse, how she’d almost trashed it, then recovered it and turned it over to the prosecutor.

Lundy said, “Your Honor, we have a stipulation to enter into the record.”

“Proceed,” the judge said.

“May the following be stipulated? That the semen on Ms. Collins’s blouse was analyzed July third of this year, by the Scientific Investigation Division of the Los Angeles Police Department, that it was compared to blood taken from the defendant, Jake Babbage, that the result of this comparison revealed the semen to be the defendant’s.”

Fitz turned to look at Babbage, who sat perfectly still, looking straight ahead, expressionless. From the slight redness around the neck, Fitz could tell the bastard was furious. Fitz was grateful that SID had been able to retrieve DNA markers that confirmed the blouse stains came from Babbage.

“So stipulated,” Giovanni said.

“The court accepts the stipulation,” Judge Morley said, evenly. She turned to the jury. “Ladies and gentlemen,” she said, “you are instructed that a stipulation is an agreement between parties concerning any fact or facts in the case. You are to treat such a stipulation as a fact that has been conclusively proven.”

Fitz noticed that all the jurors had been leaning forward during Erin’s direct testimony. After the reading of the stipulation, several scribbled in their notebooks. Lundy sat down. “I have no further questions for Ms. Collins at this time.”

So far, so good
, Fitz thought.

“Mr. Giovanni,” Judge Morley said, “you may cross-examine.”

Giovanni stood. Babbage glared at Erin. “Thank you, Your Honor,” Giovanni said. Then he frowned at Erin. “Let’s get this straight,” he began. “You’re saying that you orally copulated my client because you were … you were afraid?” He said the word “afraid” as if it were unbearably preposterous.

“That’s right,” Erin said, her arms folded in front of her. She shifted in her chair.

Giovanni’s eyes narrowed. “Were you afraid that Sergeant Babbage would harm you?”

“No. Not really.”

“So you didn’t feel that you were in any physical danger?”

She shook her head. “No.”

“Was it being arrested that caused you to be afraid?”

“Yes. I was afraid of being arrested.”

Giovanni parted his lips in a thin smile. “I thought so.” His tone became accommodating, even sympathetic. “But you’d been drinking, hadn’t you?”

“What do you mean?” Erin glanced at Fitz.

Although he was careful to keep his face impassive, Fitz was cringing inside. Lundy was a fool not to have gone over Erin’s testimony with her.

Giovanni said, “Please look at me while I’m asking you questions. Detective Fitzgerald can’t help you answer. Do you want me to repeat my question?”

She nodded, “Please.”

“You’d had too much to drink that evening, hadn’t you?”

“Well, I did drink some. But I don’t think that I was drunk, no.”

Giovanni picked up his yellow pad, and appeared to be looking at notes. He nodded to himself. “Are you saying that you were not driving under the influence of alcohol that evening when you were stopped?”

Erin paused, and then said, “I may have had a little too much to drink. I’m not sure.”

“So you were afraid of being arrested because you’d broken the law, correct?”

“It’s not like you make it sound—”

Giovanni interrupted. “Objection, Your Honor. The answer is nonresponsive. Motion to strike.”

“Sustained.” Judge Morley looked at the jury. “Members of the jury, you are to treat the answer as if you’d never heard it.”

Erin turned to the judge. “May I have a drink of water, Your Honor?”

The bailiff brought a paper cup with water to her. She took a sip and cleared her throat.

Giovanni continued his questioning. He folded his arms in front of him. “Please listen carefully, Ms. Collins. I want you to think back to that moment just after you took the field sobriety tests. To the moment when you realized that you were being arrested. What exactly did Sergeant Babbage say or do that caused you to believe you were being arrested?”

Fitz noticed that Babbage’s eyes were locked on Erin—with the intensity of a cat staring at a wounded bird.

Erin closed her eyes briefly, and then opened them. “He said that he was taking me to the station, and that I had a choice of three tests: blood, breath, or urine.”

“So you knew that if you had too much to drink, these tests would prove it, didn’t you?”

Erin sipped her water. “Yes.”

“You also knew that if you passed these tests, you would not be arrested and would be released, didn’t you?”

“I didn’t think about it exactly that way, no.”

Giovanni picked up a document from a folder on the table in front of him. Still looking at the document, he asked, “But you knew how the process worked, didn’t you?”

She frowned. “What do you mean?”

Giovanni looked up, turned to the jury for a moment, and then looked back at Erin. “Ms. Collins, I’m a little confused.” His tone was sarcastic. “A few moments ago, you said that you orally copulated Sergeant Babbage because you were … afraid of being arrested, correct?”

“Yes.”

“But if you weren’t breaking any law, then you wouldn’t have been arrested, would you?”

“He was going to arrest me anyway. He said so.”

“Are you saying that he said he was going to arrest you, even though you’d broken no laws?”

“Yes. I mean, no. He said that I’d failed the FSTs, and that he was going to take me to the station.”

“But if you broke no laws, wouldn’t that mean, at worst, you’d just be released?”

“It doesn’t work that way,” Erin said softly.

Giovanni shook his head slowly and said, “You’ve been through the arrest process before. You know what happens, don’t you?”

“Objection, Your Honor.” Lundy stood. “Counsel knows this is irrelevant, prejudicial, and assumes facts not in evidence.”

“Your Honor,” Giovanni shot back, “it goes to her state of mind. The witness has said she was afraid. I’m entitled to inquire.”

The judge overruled the objection and said to Erin, “You may answer the question.”

Giovanni looked at Erin. “You do know what happens at the police station, don’t you?”

“I do,” Erin said in a defeated voice.

“And that’s because you’ve been arrested for driving under the influence before, haven’t you?”

“Yes.”

Fitz could see stress, and even fear, in her eyes.

Giovanni picked up the document he’d been looking at, glanced at it, then dropped it.

“Twice before,” he said. “Isn’t that correct?”

“Yes.” Erin’s voice was so soft now that Fitz could barely hear.

“And that’s really why you were terrified, wasn’t it? You weren’t afraid of Sergeant Babbage. You were afraid you’d go to jail.” Giovanni didn’t wait for an answer. “You’d do anything to stay out of jail. So you bribed your way out of the arrest by orally copulating Sergeant Babbage, and now you want him arrested for agreeing to let you go, don’t you?”

“No!” Erin shouted. “He made me do it. He made me! He said I’d go to prison.”

“Objection!” Giovanni cried. “Nonresponsive. Motion to strike. The witness is trying to justify her sexual bribe.”

Lundy was on his feet. “The People object, Your Honor. Counsel is testifying. May we have a sidebar conference?”

“Quiet—both of you!” Judge Morley said. “I’ll have no speaking objections—argument must be done at sidebar, not in front of the jury. It’s been a long day. Court is adjourned until tomorrow morning at nine a.m.” Judge Morley stood up and left the bench.

The jury slowly filed out of the room. Erin remained seated, staring into space, all color drained from her face.