Rogue Lawyer (17 page)

At nine sharp on Friday morning, the jurors are led in and welcomed by Judge Ponder. Officer Sumerall is called and takes the stand again. Some of his cockiness is gone, but not all of it.

“Please continue your cross-examination, Mr. Rudd,” Ponder says. With the assistance of a clerk, I unfold and mount a large diagram of the Renfro home, both first and second floors. I ask Sumerall, as the leader of this team, to enlighten us about how the eight men were selected. Why were they divided into two teams, one for the front door, one for the back? What was each man's role? What weapons did each cop have? Who made the decision not to ring the doorbell, but instead just go crashing in? How were the doors opened? Who opened them? Who were the first cops in? Who shot Spike, and why?

Sumerall cannot, or will not, answer most of my questions, and before long he's looking like an idiot. He was the commander, and proud of it, but on the stand he's not sure of a lot of details. I hammer him for two hours and we take a break. Over a quick coffee, Doug tells me the jurors are skeptical and suspicious; a few seemed to be seething. “We got 'em,” he says, but I caution him. Two of the jurors in particular worry me because they have ties to the police department, according to my old pal Nate Spurio. We met last night for a drink and he says the cops are leaning on numbers four and seven. I'll deal with it later.

I resist the urge to hound Sumerall for the entire day, something I do more often than I should. There is an art to cross-examination, and quitting while you're ahead is part of the skill. I haven't learned it yet because my instinct is to kick a brute like Sumerall repeatedly when he's already down.

Doug says, wisely, “I think you've done enough with this witness.”

He's right, so I tell the judge I'm finished with Sumerall. The next witness is Scott Keestler, the cop who got shot, apparently by Doug Renfro. Finney takes him first on direct and tries his best to evoke some sympathy. The truth is—and I have all the medical reports—the bullet wound to his neck was only slightly more serious than superficial. In combat, he would have been given a couple of Band-Aids and sent back to the front. But the prosecution needs to score here, and Keestler sounds like he took a bullet between the eyes. They drag this out far too long, and we finally break for lunch.

When we're back in the courtroom, Finney says, “No more questions, Your Honor.”

“Mr. Rudd.”

At full volume, I pounce on Keestler with “Officer, did you murder Kitty Renfro?”

Talk about sucking the air out of a room. Finney stumbles to his feet, objecting. Judge Ponder says, “Mr. Rudd, if you—”

“We're talking about murder here, Judge, aren't we? Kitty Renfro was unarmed when someone shot and killed her in her own home. That's murder.”

Finney says loudly, “It is not. We have a statute on this point. Peace officers are not liable—”

“Maybe not liable,” I interrupt. “But it's still murder.” I wave my arms at the jury and demand, “What else do you call it?” Three or four actually nod affirmatively.

Judge Ponder says, “Please refrain from using the word ‘murder,' Mr. Rudd.”

I take a deep breath; so does everyone else. Keestler looks like a man facing a firing squad. I return to the podium, stare at him, and say politely, “Peace Officer Keestler, on the night of this SWAT raid, what were you wearing?”

“I'm sorry.”

“What were you wearing, please? Tell the jury everything that was on your body.”

He swallows hard, then begins clicking off the armor, weaponry, and so on. It's a long list. “Keep going,” I say. He finishes with “Boxer shorts, T-shirt, white athletic socks.”

“Thank you. Is that all?”

“Yes.”

“Are you sure?”

“Yes.”

“Absolutely certain?”

“Yes, I'm certain.”

I stare at him as though he's a filthy liar, then I walk to the exhibit table and pick up a large color photograph of Keestler on a stretcher as he's being rushed into the ER. His face is clearly visible. Since the photo has already been introduced into evidence, I hand it to Keestler and ask, “That you?”

He looks at it, confused, says, “That's me.”

The judge allows me to pass the photo to the jurors. They take their time, absorb the image, then I take it back. “Now, Peace Officer Keestler, looking at you in this photograph, what is this black stuff you're wearing on your face?”

He smiles, relieved. Aw shucks. “Oh that, that's just black camouflage paint.”

“Also known as war paint?”

“I guess. It has several names.”

“What's the purpose of war paint?”

“It's for camouflage purposes.”

“So it's pretty important, huh?”

“Sure is, yes.”

“It's necessary to insure the safety of the men on the ground, right?”

“Absolutely.”

“How many of the eight peace officers in your SWAT team that night covered their faces with black war paint?”

“I didn't count.”

“Did all of our peace officers wear black war paint that night?”

He knows the answer and he figures I do too. He says, “I'm really not sure.”

I walk to my table and pick up a thick deposition. I make sure he sees it. “Now, Peace Officer Keestler—”

Finney stands and says, “Now, Your Honor, I'll object here. He keeps using the term ‘peace officer.' I think that—”

“You used it first,” Judge Ponder fires back. “You used it first. Overruled.”

We eventually establish that four of the cops decorated themselves with black war paint, and by the time I move on Keestler looks as dumb as a teenager playing with crayons. It's time for some real fun. I say, “Now, Peace Officer Keestler, you play a lot of video games, right?”

Finney is back on his feet. “Objection, Your Honor. Relevancy.”

“Overruled,” His Honor says harshly without even looking at the prosecutor. Judge Ponder has become increasingly, and obviously, fed up with the police and their lies and tactics. We have all the momentum—a rarity for me—and I'm not sure how to handle it. Do I speed things along and get the case to the jury while they're on our side? Or do I plod along, scoring every possible point?

Scoring is so much fun, plus I have a hunch the jury is squarely on my side and enjoying this train wreck. “What are some of the video games you enjoy playing?”

He names a few—benign, almost kiddie-like games that make him sound like an overgrown fifth grader. He and Finney know what's coming and they're trying to soften the blow. In doing so, Keestler looks even worse.

“How old are you, Mr. Keestler?”

“Twenty-six,” he says with a smile, finally an honest answer.

“And you're still playing video games?”

“Well, yes, sir.”

“In fact, you've spent thousands of hours playing video games, right?”

“I guess.”

“And one of your favorites is
Mortal Attack Three,
right?” I'm holding his deposition, a thick sworn statement in which I managed to hammer out the fact that he got hooked on video games when he was a kid and still loves them.

“I guess, yes,” he says.

I wave his deposition like it's poison and say, “Well, haven't you already testified, in a sworn deposition, that you've been playing
Mortal Attack Three
for the past ten years?”

“Yes, sir.”

I look at Judge Ponder and say, “Your Honor, I would like to show the jury a clip from
Mortal Attack Three
.”

Finney is turning flips. We've been arguing about this for a month, with Ponder withholding a ruling until this very moment. Finally, he says, “I'm intrigued. Let's take a look.”

Finney tosses a legal pad on his table in total frustration. Ponder growls, “Enough of the theatrics, Mr. Finney. Take a seat!”

I rarely have the judge on my side and I'm not sure how to act.

The courtroom lights are dimmed while a screen drops from the ceiling. A tech guy has edited a five-minute clip of the video game. At my instruction, he cranks up the volume, and the jury is jolted by the sudden image of a bulky soldier kicking in a door as explosions rip through the background. An animal resembling a dog but with shining teeth and huge talons lunges forward and our hero guns him down. Villains appear in doors and windows, and they're all blown to hell and back. Bullets, the kind you can see, blast and ricochet. Body parts are ripped off. Blood is knee-deep. People scream and shoot and die with great drama, and after two minutes we've seen enough.

After five minutes, the entire courtroom needs a break. The screen goes blank and the lights come on. I glare at Keestler, who's still on the witness stand, and say, “All fun and games, right, Peace Officer Keestler?”

He does not respond. I watch him drown for a few seconds, then say, “And you also enjoy playing a game called
Home Invasion,
right?”

He shrugs, looks toward Finney for help, and finally grunts, “I guess.”

Finney stands and says, “Judge, is this really relevant?” The judge is leaning on his elbows and ready for more. He says, “Oh, I think this is very relevant, Mr. Finney. Let's roll the tape.”

The lights go down, and for three minutes we watch the same mindless mayhem and gore. If I caught Starcher playing this garbage, I'd lock him away in rehab. At one point, juror number six whispers loudly, “Good God!” I watch them as they stare at the screen, thoroughly disgusted.

When the videos are over, I force Keestler to admit that he also likes a game called
Crack House—Special Ops
. He admits the cops have a locker room in the basement of the police department. Courtesy of the taxpayers, it is equipped with a fifty-four-inch flat-screen television, and for fun the boys gather there between SWAT maneuvers and play video game tournaments. Over Finney's lame objections, I drag this out of Keestler, bit by bit. By now, he doesn't want to talk about it, and this makes matters worse for him and the prosecution. When I finish with him, he is destroyed and discredited.

As I sit down, I look at the gallery. The chief of police is gone, and for good.

Judge Ponder asks, “Who's your next witness, Mr. Finney?”

Finney has the hangdog look of a prosecutor who doesn't want to call any more witnesses. What he does want to do is catch the next train out of town. He looks at a notepad and says, “Officer Boyd.” Boyd fired seven rounds that night. At the age of seventeen, he was convicted of a DUI but managed to get his record expunged later. Finney doesn't know about the DUI, but I do. At the age of twenty, Boyd received a dishonorable discharge from the Army. When he was twenty-four, his girlfriend called 911 and complained of domestic abuse. Things were swept under the rug; no charges stuck. Boyd is also the veteran of two other botched SWAT raids, and he's enthralled with the same video games that keep Keestler so occupied.

Getting Boyd on cross-examination could well be the highlight of my legal career.

Judge Ponder suddenly says, “We're going to recess until Monday morning at nine. I want to see the lawyers in my chambers.”

As soon as the door closes, Judge Ponder glares at Finney and growls, “Your case sucks. The wrong person is on trial.”

Poor Finney knows it but cannot say so. In fact, at this moment he's unable to say anything at all. The judge hammers away. “Do you plan to put all eight of the SWAT team on the witness stand?”

“As of now, the answer is no,” Finney manages to say.

I pounce with “Great, then I'll call them as adverse witnesses. I want all eight to face the jury.” The judge looks at me fearfully. I have the absolute right to do this and they know it. Seconds pass as they try and imagine the nightmare of the other six toy soldiers facing the jury as I pound them like a madman.

His Honor looks at Finney and asks, “Have you thought about dismissing the charges?”

Of course not. Finney may be demoralized but he's still a prosecutor.

Normally, in a criminal trial the judge has the right to exclude the State's evidence and direct a verdict in favor of the defendant. This rarely happens. In this case, though, the statute declares that any person who fires upon a policeman who is entering his or her home, whether the cops have the correct address or the wrong one, is guilty of the attempted murder of an officer. It's a bad statute, poorly conceived and dreadfully written, but in Judge Ponder's opinion it does not afford him the option of dismissing the case.

We're headed for a final verdict.

Over the weekend, one of the remaining six SWAT cops is suddenly hospitalized and cannot testify. One simply vanishes. It takes me a day and a half to annihilate the remaining four. We're getting front-page coverage and the police department has never, ever looked so bad. I'm trying my best to savor this glorious moment because it's unlikely to happen again.

On the last day of testimony, I meet the Renfro family for an early breakfast. The topic is whether or not Doug should testify. His three adult children—Thomas, Fiona, and Susanna—are present. They have watched the entire trial and have no doubt our jury will not convict their father, regardless of what some lousy statute says.

I explain the worst-case scenario: Finney will get under his skin on cross-examination and try to irritate him. He'll make Doug admit that he fired five shots from his handgun and deliberately tried to kill the officers. The only way the State can win the case is for Doug to melt down on the stand, something we simply do not expect. The guy is solid, and he insists on testifying. At this point in any trial, the defendant has the right to testify, regardless of what his lawyer thinks. They press me on this. My instincts are the same as any criminal defense attorney: If the State has failed to prove its case, keep the client off the stand.

But Doug Renfro will not be denied.