Authors: James Scott Bell
A minute later a T-shirted, curly blond guy with a scraggly beard came in.
“This is Sid Vacuous,” B-2 said.
My look said,
Are you serious?
“He’s in a band,” B-2 said, “and I don’t argue with people what they want to be called. I want to know can they deliver. The
kid’s our go-to computer guy. So talk to him, Sid.”
“Hey, what’s up?” Sid said to me, then, “The guy’s a gamer. I know it. I can smell it. His e-mails have a pattern. Each one
is based on a rhyme.”
The last one, the third, had a sexually graphic Dr. Seuss riff.
“I want him,” Sid said. “I want to get this guy. I want to shame him.”
“You must be a gamer too,” I said.
“Oh, you have no idea.” Sid smiled proudly.
“Dude’s using an IP address routing through some library in Atlanta, only it’s a bogus setup because he’s spoofing the library’s
router address, bypassing the need for any type of identification at the front end. So the guy could be anywhere and he’s
set it up so we can’t follow him back. We’ll get stuck in Atlanta, and you do not want to get stuck in Atlanta, believe me,
all they have is fried food and—”
“Sid, focus,” B-2 said.
“Okay, okay,” Sid said. “It’s just interesting this isn’t routed through Romania or something. Tells me the guy’s arrogant.
That’s kind of why I think he’s got the gamer thing going on. Anyway, there’s something I want to try to get this guy. It’ll
have to go on your network out at the nun place—what do they call that again?”
“Abbey,” I said.
“And if I put in some key words, it can trace the route in real time, alert me, and maybe get us another geographic on this
guy. Kind of like a reverse Trojan horse we’ll ride back to the scene of the crime. Or not. So can we?”
“We can,” I said. “All we have to do is sneak it by Sister Hildegarde.”
“Who?”
“Head nun.”
“That’s nice,” Sid said. “That’ll be a good sneak.”
E
RIC’S PRELIMINARY HEARING
got started on a looming Thursday morning, the kind L.A. seems to offer every now and then as an apology for having great
weather. Stratus clouds blanketed downtown like a notice of audit from the IRS.
The courtroom belonged to the Honorable Judge Steven Prakash, one of the younger judges, maybe forty or so. Black hair, dark
brown skin, slight M. Night Shyamalan accent.
The deputy DA was Tom Radavich. I knew nothing about him except that he’d been on the first Phil Spector prosecution team
for a short time. He was about five-ten, with thinning hair the color of a cowhide briefcase. He wore a plain but crisp gray
suit.
Experience has taught me these are the lawyers you really have to watch. There was a guy my old firm tangled with more than
once, a defense lawyer for the insurance companies. The guy pulled down a million and a half a year, but when he showed up
in court you’d have thought he was a cheese knife salesman from Schenectady.
And juries loved him. They had no idea he was a wealthy lawyer with homes in Beverly Hills, Vail, and Orlando. He was a “man
of the people,” who just happened to be representing an insurance company.
He cleaned our clocks a couple of times. The third time Pierce McDonough was ready for him, got his own rumpled suit, and
beat him to the tune of fifty million in a medical malpractice case.
So even though we shook hands, and he was all smiles, I was not going to get sandbagged by any cornpone.
Kate was sitting in the gallery with Sister Mary. When they brought Eric into the courtroom, in his prison garb, and shackled
him to the chair, I caught a glimpse of Kate. She was holding a tissue up to her eyes. Sister Mary patted her gently on the
arm.
J
UDGE
P
RAKASH GOT
us underway at 9:05 a.m.
Just after stating my appearance, I said, “Judge, if I may request that my client not be shackled during the hearing. He’s
certainly not an escape risk.”
Radavich wasted no time shooting to his feet. “Mere statement of counsel is not authority, Your Honor. There is no reason
to deviate from procedure in this instance.”
“This isn’t
Ben-Hur,
Your Honor. Mr. Richess is not a slave to be chained to an oar.”
Prakash smiled. “Colorful analogy, Mr. Buchanan. But will the restraints impede your client’s ability to participate in the
hearing?”
“It impedes his ability to be treated like a man presumed to be innocent.”
“I’ll be sure to keep that in mind,” the judge said. “Let’s get on with the hearing.”
Radavich started off with an LAPD blue suiter named Baron. He was sworn and gave his name for the record.
“What is your current position, Officer Baron?” Radavich asked.
“I’m a patrol officer–two, working out of Hollywood Division.”
“And how long have you been with the department?”
“Four years last month.”
“And were you on duty on the night of January thirtieth?”
“Yes, with my partner, Officer Trujillo.”
“Please describe what occurred at around ten-thirty.”
“We answered a call at ten-thirty-three p.m., a complaint about loud music coming from an apartment. We arrived at the location
at ten-forty-five and proceeded to the apartment where the music was coming from.”
“The music was still playing?” Radavich said.
“Yes.”
“Was it loud?”
“Very loud. Rock music of some kind.”
“But you could hear it through the door?”
“Yes. And down the hall. It was obviously a disturbance to the neighbors.”
“What happened next?”
“I spoke to the next-door neighbor, who said she had pounded on the walls, and finally the door, but got no response. Which
is when she decided to call in a complaint.”
“The neighbor?”
“Yes.”
“What did you do then?”
“I knocked on the door and announced my presence. I waited approximately ten seconds, then knocked again, and announced again.
When there was still no answer, my partner called our supervisor at Hollywood Station to come in.”
“You did not attempt to enter the apartment or get a manager to unlock it?”
“Not at that time.”
“Why not?”
“There were no exigent circumstances. Loud music alone is not enough. The decision to enter goes to a field sergeant supervisor.
Sergeant Leon arrived ten minutes after our call. He then directed the building manager to use a master key to unlock the
door.”
“Describe for the court what you found when you entered the apartment.”
“There was loud music coming from one of the iPod systems, in the front room.”
“Can you explain a little more what that looked like?”
“Yes. It was about the size of a toaster oven, with speakers, and there’s a place in the center where you put the iPod.”
“What did you do next?”
“My partner and I began a sweep of the apartment.”
“Did you turn off the iPod?”
“Not at that time. We wanted to keep the element of surprise if anyone was in the apartment who shouldn’t be.”
“What did you find during your sweep?”
“In the kitchen I found a male Caucasian in a chair at the kitchen table. His head was slumped over the back of the chair.
He appeared to have been shot through the mouth. There was blood on the wall behind him, and a gun on the floor by his right
hand.”
“What did you do next?”
“I checked with my partner and supervisor, who determined there was no one else in the apartment. Then I unplugged the iPod
dock from the wall to stop the music. I didn’t want to touch anything. My partner called for an ambulance, and Sergeant Leon
and I secured the scene and began to canvass for witnesses. I believe Sergeant Leon called for backup and a detective.”
“Did you interview anyone at the scene?”
“Yes, I did.”
“Who did you interview?”
“May I refer to my report?” Officer Baron asked.
“Certainly.”
As he leafed through his pages, I leafed through my Motion Manual, a guide to procedure at prelims, because I knew what was
coming. Hearsay. There’s a statute allowing hearsay from a qualified officer at a prelim. That’s the section I looked up.
“I have it,” Baron said. “I first interviewed a Ruth Marion. She lives in the apartment across the hall from the subject,
who we had identified as one Carl Richess.”
“Can you give us the substance of the—”
“Objection,” I said. I stood up, holding open the Motion Manual.
“On what grounds?” the judge said.
“Inadmissible hearsay,” I said.
Radavich snorted. Actually snorted. “Your Honor, counsel is perhaps unfamiliar with the code on this point. Officer hearsay
is admissible.”
Prakash looked at me, as if expecting me to melt into a little ball.
“Your Honor,” I said, “I believe Mr. Radavich is referring to Penal Code 872(b).”
“Of course I am,” he said.
“Then may I be permitted to take this witness on voir dire?”
“To what possible purpose, Mr. Buchanan?” the judge asked.
“If you’ll allow me just two questions?”
He thought a moment, then nodded.
“Officer Baron,” I said, “you are a patrol officer–two, correct?”
“Yes.”
“And when Mr. Radavich was qualifying you on direct, you stated that you had been with the Los Angeles Police Department for
four years?”
“That’s right.”
“That’s two questions, Mr. Buchanan,” Judge Prakash said.
“Got me, Judge. Can I have one more?”
Prakash smiled. “I’m in a giving mood.”
“Officer Baron, have you ever been told how to testify at a preliminary hearing?”
He answered a bit too fast. “No.”
“Never been trained in preliminary hearing testimony?”
“Just normal talking to the prosecutor.”
“Officer Baron, have you ever completed a training course certified by the Commission on Peace Officer Standards and Training?”
“Yes, at the Academy I completed numerous POST courses.”
“But not one in testifying at preliminary hearings.”
“No.”
I looked to the judge. “Your Honor, PC 872(b) allows officer hearsay testimony only if the officer has been on the force for
five
years,
or
has completed a POST course specifically dealing with testifying at preliminary hearings. As this officer has only four years’
experience, and has not completed the required course, the hearsay testimony is inadmissible.”
“No way.” Radavich was on his feet. “Judge, he’s an officer with an impeccable record.”
Prakash tapped at his keyboard, then looked at his computer monitor. “Well, there it is, right there,” he said. “Penal Code
section 872(b). Mr. Buchanan is absolutely right.”
Radavich turned his reddening face my way.
“Scary, isn’t it?” I said to him.
Prakash said, “I’m going to exclude all hearsay testimony from this witness, Mr. Radavich. Have you any further questions
for him?”
“Not at this time.” He was silent as he lowered himself into his chair.
It was my turn to go into cross. The prosecutor only plays a minimal hand at the prelim. You do what you can with it, hoping
to preserve something useful for trial. Now that a major portion of Baron’s testimony was being excluded by the judge, I had
only one area to cover.
“Officer, inside the apartment, you did not see anything that would suggest foul play, did you?”
“Yes, I did. The dead man.”
The judge smiled at that. I was not in a smiling mood. “The gunshot could have been self-inflicted, could it not?”
“I was not asking myself those questions.”
“Never occurred to you?”
“No.”
“That part of your training, not to ask questions?”
“No, sir.”
“Then I have no further questions myself.”
R
ADAVICH CALLED A
forensic expert from the LAPD lab, a Dr. Freeman Jenks. Unkempt, thinning gray hair over birdlike features. Like he was a
giant crane carrying a small nest on his head. I knew exactly why he was going to testify, so before he was sworn I objected.
“Your Honor,” I said, “I would like an offer of proof on the relevance of this witness.”
Judge Prakash nodded. “Mr. Radavich?”
The prosecutor said, “He will be testifying about the blood found on the murder weapon.”
“Seems relevant to me,” Judge Prakash said.
Jenks took the oath and stated his name for the record.
The prosecutor asked, “By whom are you employed, sir?”
“I’m a criminalist with the Los Angeles Police Department, Scientific Investigation Division, working out of the Hertzberg-Davis
Center at Cal State L.A.”
“How long have you been so employed?”
“Seven years. Previous to that I was with the Los Angeles County Sheriff’s Department, for a period of ten years.”
Radavich picked up Carl’s gun from the counsel table. It had been tagged as an exhibit. “Showing you now the weapon used to
kill Carl Richess, can you tell me if you conducted any tests?”
“I did.”
“And what did you find?”
Jenks opened up a notebook he’d brought to the stand. “I found a small amount of blood on the barrel of the gun, which I tested,
and determined was O positive. This is the blood type of the victim, Carl Richess. I also found a trace amount of blood, a
small dot if you will, on the butt of the gun, and the intersection of the slide area.”
“And by that, do you mean where the slide, when chambering a round in this semi-automatic pistol, comes back, at that intersection?”
“That’s right.”
“What was significant to you about that bloodstain?”
“Well, I thought it in an odd spot if the theory is suicide. I particularly wanted to test that, and the test came out O negative.”
“What is the defendant’s blood type?”
“According to the report, it’s O negative.”
“What portion of the population is O negative, sir?”
“A little under eight percent.”
“Has this sample been tested for DNA?”
“It has, and we are awaiting results.”
“Thank you. Nothing further.”