David Ellis: The Last Alibi

“That’s right.” Detective Forrest nods.

“And Billy-Billy was wearing a black wool coat as he walked westbound.”

“He. . That’s right, yes.”

“It was cold out that day, true?”

“It was.”

“Below freezing, you could see your breath, that sort of thing?”

“That’s right.”

“Nothing unusual about wearing a black wool coat on a cold day, correct?”

“I didn’t say it was unusual.”

I pause. Sometimes judges like to interject when witnesses elaborate, especially at the beginning of their testimony. But Judge Goodson remains mute, his chin resting in his left hand.

“You agree with me, it wasn’t unusual.”

“I agree,” he says.

“His hands were in his pockets, correct?”

“I believe they were, yes.”

“Nothing unusual about that, either.”

“Correct.”

“You were in an unmarked Chevy Cavalier, parked on the south side of the street.”

“That’s right. I was doing a drive-around.”

Judge Goodson, a former prosecutor, knows what that means, but I have to make my record for the appellate court. “You were driving around Roosevelt, looking for someone to stop and sell you drugs in your car.”

“Correct.”

“Okay, Detective. And you were in the driver’s seat.”

“I was.”

“So you’re on the south side of Roosevelt, looking north?”

“That’s correct.”

“So Billy, walking west on the opposite side of the street, came up from behind you, so to speak. He wasn’t walking toward you, he was walking away from you.”

The detective clears his throat. “I observed the suspect in my rearview mirror, walking westbound. Then he passed by my line of sight and continued walking away from me.”

“The suspect,” I say. “You called him a suspect.”

“Well, the-”

“He was already a suspect, the moment you laid eyes on him in the rearview mirror. That’s your testimony.”

Detective Forrest leans forward in his chair, a bit of crimson rising to the surface of his cheeks. Surely he’s been warned, over and over again by the prosecutor, not to let me get a rise out of him.

“The block in question is where Buildings A and B of the Eagleton Housing Projects are located,” he says. “They are known drug houses. It’s been well documented that people go to Eagleton to buy crack cocaine.”

“Okay, so he was a suspect the moment you saw him walking down the street in a black wool coat with his hands in his pockets.”

“You forgot that he ran , Counselor.”

“No, I didn’t. I’m not there yet, Detective. I’m at the point in time that you first saw him, in the rearview mirror. For the third time, Detective-”

It’s always nice to remind the judge that the witness isn’t answering your question.

“-was Billy a suspect at that point in time, or wasn’t-”

“And I already told you, Counselor, that he was walking along a route that is known for drug activity.”

“Just walking down Roosevelt? You didn’t see my client come out of Building A or B, did you? You were just doing a drive-around when you saw my client, correct?”

He lets out a sigh. “Correct.”

“So you’re saying that simply walking down Roosevelt, between Girardi and Summerset, made Billy automatically a suspect for drug possession.”

“I didn’t say that.”

“Well, you’ve already agreed that there were other individuals walking on Roosevelt at that time. Were they all suspects, too?”

“I didn’t say that, either.”

I look at the judge, as if I’m bewildered. Judge Goodson actually smirks. My theatrics play better with a jury than with a judge who has seen this act a thousand times.

“So Billy was one of several individuals walking along a known route for drug activity ,” I say.

“He’s the only one who ran,” says Detective Forrest.

“He’s the only one you followed in your car,” I answer. “Right? You drove along after him for almost an entire city block before he started to run. Isn’t that true?”

It may or may not be true, but it’s what he wrote in his police report, so he’s glued to it.

“Yes, that’s true.”

“What was so different about Billy versus the other people walking up and down Roosevelt Avenue at that time, Detective? He was wearing a black wool coat and kept his hands in his pockets in the dead of winter. What was so different about him that made you follow him and only him?”

As a technical matter, we tell young lawyers not to ask open-ended questions like this on cross-examination. You’re supposed to control the witnesses by asking your preferred questions and getting yes or no responses. But we’re going to get to this point one way or the other when the prosecutor gets to ask him questions, and I want this Q amp;A on my terms.

Plus, I have his police report, and if he adds facts that weren’t contained in that report, I’m going to crucify him. That would make matters even worse for him.

“He was walking quickly and looking around, like he was nervous.”

“Walking quickly in the dead of winter. Looking around nervously while he walked alone in a neighborhood you agreed was dangerous and gang-infested. Walking quickly and acting nervous while an unmarked car, with unknown occupants, followed him. That’s what you’re telling the judge struck you as suspicious.”

The detective glances at the judge.

“Anything else, Detective? I’m giving you the floor here. What other facts, Detective, gave you probable cause to believe my client was carrying drugs?” I tick off the points on my hand. “He was walking on Roosevelt Avenue like several other people, he was wearing a winter coat like several other people, he had his hands in his pockets like several other people, he was looking around nervously and walking quickly while some stranger followed him in a beater Chevy. Is that it , Detective?”

The heat has fully reached the detective’s face. I’m sure he’s the combative sort ordinarily. He’d like to have it out with me behind the courthouse, if he had his druthers.

“He fit a profile,” he answers with a bit less bravado. “It’s a known fact that suburban kids come here to buy drugs.”

“Ah,” I say, like I’ve discovered gold, like we’ve finally arrived at the truth. “He looked like a suburban kid.”

“He did.”

“Because he is white.”

“Because-he looked like a suburban kid.”

I drop my chin a notch and look up at the detective. “Among the several individuals who were walking along Roosevelt Avenue at that point, isn’t it true that Billy Braden was the only white person?”

“I don’t recall,” he snaps.

“You picked him out because he was a white kid in a black neighborhood.”

“I didn’t.”

Of course, he did. Billy looked like someone who didn’t belong. It’s not that Detective Forrest was acting illogically. It was somewhat logical. But when it comes to racial profiling, the police department gets very sensitive. They don’t want to admit that they single out a white kid in a black neighborhood any more than they want to admit that they single out a black kid in a white neighborhood.

And no judge wants to condone racial profiling, either. Judge Goodson is a temperamental sort-if he weren’t, he’d have his own felony courtroom by now-but he isn’t stupid. Unless the prosecutor cleans this up, the judge will have to toss this one. And I don’t think the prosecutor can clean this one up.

He doesn’t, not very well at least, during his examination of the detective. I do a recross and lay the racial thing on pretty thick. I don’t particularly enjoy doing it, but guess what? My client doesn’t pay me for what I enjoy doing. He pays me to win the damn case. And this is the most effective route to winning it.