William Bernhardt - Death Row

“Did you have a warrant to conduct a personal search?” Ben asked.

“You know I didn’t.” In the short time it took Ben to approach the stand, Murphy’s demeanor had been transformed. Where once had sat the compliant, terse, unemotional witness, now was the antagonistic, argumentative paladin for truth, justice, and the American way. “Probable cause for the search was based on his violation of Oklahoma ’s laws on open containers. Misdemeanor in my presence. Clear basis for arrest, then search.”

Ben knew the story, having reviewed the officer’s statement so many times he could recite it from memory, but he wanted to make sure the jury was with him before he proceeded. “Would you explain that, please?”

“As I drove past the witness, I saw that he was drinking a beer. Out of a can. A Bud Light, to be specific.”

“You saw the can?”

“I saw the top part of it. It was wrapped up in a paper bag. Common practice for people drinking in violation of the liquor laws.”

“But you could see enough to tell it was an alcoholic beverage?”

“Definitely. And as you know, counselor, you can’t walk down the streets carrying an open container with an alcoholic beverage. That’s against the law. So I parked my car and ran after him.”

“And when you caught up to him, was he in fact carrying a beer?”

“No, not then. He must’ve ditched it somewhere. Probably saw me coming and tossed it over a fence or down a gutter.”

“But you searched him anyway.”

“Of course. The man broke the law. Standard procedure.”

“Were there any other witnesses to this alleged offense?”

“No, I was working alone.”

“Did you ever find the alleged beer can?”

“I can’t say that I ever looked. After the search, I had better things to do.”

No doubt. Ironically, unlike carrying an open beer can, carrying a concealed weapon was not illegal in Oklahoma, so long as the gun was registered. And since all of the Faulkners were killed by a knife, the gun did not immediately link Goldman to the crime. But the assailant had used a gun to corral and control the family, and Frank Faulkner had a wound on his head that could have been caused by the butt of a gun. It was hardly proof positive, but it was the best piece of physical evidence the prosecution had. If Ben could get Judge Kearns to suppress it, it could dramatically alter the course of the trial.

“Pardon me for saying so, Officer Murphy,” Ben continued, “but I’m having a hard time understanding how you could see a man on the street from a distance, while in a moving car, at the end of the day after the sun has begun to set, see only the top part of the can, and still know immediately that it was a beer.”

“Chalk it up to experience. I’ve been on the police force for almost twenty years.”

“Which is what inclines me to think that perhaps you followed my client, searched him illegally, then concocted this story about the beer to justify the search.”

“Your honor, I protest!” DA Bullock shot to his feet, a look of outrage plastered across his face. “Counsel is desperately trying to create some impropriety where none exists. I find this grossly offensive. And I deeply resent the suggestion that this state’s sworn and trusted law enforcement officers might engage in improper practices.”

“If that’s an objection,” Judge Kearns said, “it’s sustained.” Ben suspected that Kearns, being an African-American in his sixties living in the Southwest, was probably less outraged than Bullock by the suggestion that a law enforcement officer might do something improper.

“Tell me,” Ben said, taking a step closer, “how far away from my client were you when you first spotted the beer?”

Murphy shrugged. “About twenty feet. Maybe a little more.”

“And you had no problem identifying the can he held as a beer?”

“None at all.”

“Fine.” Ben reached into the pocket of his suit coat and withdrew a large tape measure. “Twenty feet it is.” Good thing they were in the large courtroom. Ben hooked the tape measure to the rail in front of the witness stand and started reeling the tape backward.

Murphy watched, a small crease appearing between his eyebrows. “What’s that for?”

“Sorry,” Ben said. “I’m the one who gets to ask the questions.” He continued pulling the tape backward, taking his own sweet time about it. Let Murphy sweat awhile, Ben thought. Let the jury get interested. They’ve been sitting in those chairs all day. They must be ready for something a little more lively.

Ben stopped when he was exactly twenty feet away from the stand. He addressed his client. “Ray, would you come here, please? And bring that box on the floor.”

Bullock slowly rose. “Your honor, I object. I don’t know what Mr. Kincaid is trying to pull-”

“Well, if you’ll sit patiently for a minute,” Judge Kearns said, interrupting, “you might figure it out.”

Ouch. That put Bullock back in his seat in a hurry. Ben positioned Ray at the twenty-foot mark, then turned away from the front of the courtroom and opened the box. He removed a can wrapped up in a paper bag so that only the top showed, then handed it to Ray.

“Sergeant Murphy,” Ben announced, “I have re-created the scene just as you described it. The same man, the same distance, another can partially concealed by a paper bag-with just as much showing at the top as you say was visible when you spotted Ray on the street. The only real difference is that the lighting in here is much better than it would have been on the streets at six-thirty in the evening, and you’re not in a moving car, so you’ll be able to take a much more careful sustained look.”

Bullock saw what was coming and did his best to stop it. “Your honor, again I object. This re-creation has not been staged under controlled circumstances-”

“I’ll allow it,” Kearns replied.

“Furthermore, the jury could be unduly influenced by a test that in no way indicates what happened on the evening of-”

“I’ll allow it,” Kearns repeated, a bit more forcefully this time. “Mr. Kincaid, you may proceed.”

“Thank you, your honor.” He returned his attention to the witness. “My question is pretty simple, Sergeant Murphy. What is Ray holding in his hand?”

Murphy sat silently, not saying anything. He made a few furtive glances in the direction of the prosecution table, but Bullock couldn’t help him now.

“I’m waiting for an answer, Officer. What is Ray holding?”

Murphy continued to stare at the defendant intently, but he did not respond.

“He’s the same distance away from you that he was on the night you searched him, Sergeant. Maybe even closer. Surely if you could tell what he was holding then, you could do so now.” Ben paused. “ If you could tell what he was holding then.”

Murphy still did not answer.

“Okay, I’ll make it easier for you. Consider it a yes-or-no question. Is he holding a beer? Or any other alcoholic beverage that would give you a legal right to search? Please bring your twenty years of experience to bear and give the jury an answer.”

Murphy stood up and continued to stare at the bag in Ray Goldman’s hand. Ben could easily imagine the thought process running through his brain. It had to be tempting to take a guess. After all, he had a fifty-fifty chance of getting it right. He could say it was a beer, just like before (and Ben hoped he would, because it was actually a can of Pepsi One). But if Murphy got it wrong, it would be a disaster for the prosecution. Ultimately, he decided to play it safe-and to answer the question honestly.

“I can’t tell,” he said quietly.

“Excuse me?” Ben said. “What was that?”