Chapter Twenty-Two

In an effort to ease the pressure on his handcuffed wrists, Jesse leaned forward in his hard vinyl seat in the back of the police cruiser. He rested his forehead against the steel mesh cage, cursing his rotten luck. He wasn’t even going to get high today. He actually planned on going to court just to put the suits’ minds at ease. But he wasn’t going to testify. After all, this was Oakland—and he was a survivor. He’d go to court and he’d keep in touch with the old hippie investigator then disappear right before it was his time to testify. That was the play.

But now he was fucked. He’d overslept and then his ride to court had bailed on him. He knew if he showed up late, they would want to put him in jail until the trial was over. And he couldn’t go back to jail, especially not as a witness to a gang hit.

In some ways, the juvy pen had been easier than life on the streets. It had been hard at first. Being away from Damon, mostly. Then having to fight to show you’re nobody’s bitch. But he’d figured it out. Got through his twelve years relying on his smarts and playing the angles. He’d peddled dope the guards would smuggle in, traded cigarettes, sold himself when he had to. For a while he had a racket renting out books that Damon would send him. The first of a series was free, then it was a dollar a book.

Out here on the streets, though, there was too much drama. Who owes who money? Who stole who’s stash? Who snitched? One thing about prison, you damn sure knew what to expect every day. Out here, though, there were too many variables. Too much could go wrong. He’d been out less than two years and had already been back to jail three times.

Like today, after he missed court, he was just going to lay low. But Eva had called. She’d scored some weed, probably after rolling one of her johns. He didn’t ask. Anyway, she wanted to smoke, so they got high in her motel room.

Still, everything had been cool until they got the munchies and he started craving pizza. Real pizza, not the ketchup and cheese on toast you could make in the pen. And not the cold dumpster pizza he and Damon had eaten growing up. Real hot bubbly pizza that burns the roof of your mouth. He’d only had it twice in his life. Once with Damon when he first got out.

So, he and Eva had ordered a pizza—pepperoni with extra cheese—and just like he’d planned it, he had waited for the delivery guy in the parking lot. He should have known, though, when he saw how athletic the guy looked. He should have called it off. But he kept thinking of that pizza.

He’d managed to surprise him from behind a car and snatch the box, but the guy was fast. That and being high had slowed him down. Anyway, he’d been tackled, the pizza lost. Of course, given his luck, a cop had been driving by.

Still, he was pretty sure the cop was going to just cite and release him. He’d be in Eva’s room now, eating ramen off of her hotplate. But then he’d heard the radio chatter, then the rattle of the handcuffs. The cop found out about the warrant, and that was it.

Jesse lifted his head and leaned back in the cruiser, the steel of the cage cooling his skinned knee. He dreaded the phone call, but now he had a serious problem. He needed his twin brother.

****

“Hear ye, hear ye.” boomed the voice of Deputy Hartag, as the great Ludlow ascended the bench with a flourish, robe billowing behind him. “All rise. Department 27 of the Superior Court of the State of California, County of Alameda, Oakland Hall of Justice, is now in session, The Honorable Douglas Latimer Ludlow III, presiding. Please be seated.”

The judge paused slightly when he reached his perch and looked out across the courtroom filled with prospective jurors with a prideful smile, as if surveying his kingdom.

I had heard tell of Ludlow’s over-the-top entrance and it certainly lived up to all expectations of absurdity. The call-to-order was left to the discretion of the individual judge. Most opted for “Ladies and Gentlemen, come to order, this court is now in session.” Ludlow being short on discretion, his introduction more resembled a gaudy coronation.

Darnell sneaked a look behind him at the gallery and frowned. I read his mind. Watching the courtroom door as the jurors entered, I had counted only six African Americans out of ninety.

As a city, Oakland has one of the largest black populations in the state. However, jurors are summoned to court from throughout sprawling Alameda County. County wide, African Americans make up less than ten percent of the population. Also, juror lists are gathered from voter registration rolls, which do not include the many disenfranchised residents of Oakland.

The judge welcomed the venire and told them they were here for a criminal trial. Then he read the charge, always one of the worst moments in a felony trial. “The People of the State of California have accused the defendant, Darnell Jackson Moore, of a violation of Penal Code section 187, Murder, in that on or about March 22, 2021, Darnell Jackson Moore murdered Cleveland Barlow.”

Darnell squirmed in his seat to my left as we felt the stare of every eye in the courtroom. “The charges themselves are not evidence, ladies and gentlemen,” Ludlow said, reading from a script. But by now, the prospective jurors were probably no longer listening, instead wondering why Darnell had killed and how he had done it.

Ludlow reviewed the trial schedule. Didery and I were surprised to hear that we would be in session only four days a week. This was common for many departments, as they often handled motions calendars on Fridays. Since Ludlow couldn’t be trusted with a motions calendar, his incompetence bought him a vacation day once a week. He certainly wouldn’t give up that for our silly murder trial.

After the first twelve jurors were seated in the box, Ludlow began to question them, again reading from a script. There was the usual collection of teachers, software engineers, retirees, and office managers. Overall, not a bad group from a defense perspective, save for one crusty retired marine who looked like he was ready to convict Darnell before lunch time.

Things went smoothly until it was the marine’s turn with the microphone.

“Mr. Eggers, I see you’ve served our country…”

“It’s Captain Eggers,” the juror cut in abruptly.

“I see, sir.” Ludlow stared hard at the man, undoubtedly thinking, ‘Didn’t you read my name plate? I’m the God damned judge.’ The judge began again, emphasizing the title ever so slightly. “Well, Captain, have you had any previous jury experience?”

“Yeah. Military Court. It’s not the same though. We didn’t go through all this unnecessary process.”

“Sir, the trial process is hardly unnecessary. The trial—”

“Well, why don’t we get on with it, then? There’s clearly some pretty strong evidence that this guy did it, so let’s just—”

“Mr. Eggers, stop interrupting me!” Ludlow bellowed, banging his gavel like a child. “You are on thin ice, sir. You’re being disrespectful to me and this courtroom and this murder trial.” For a moment, I thought the flustered judge would fling his gavel at the juror. “Counsel, approach.”

When we reached the bench, Ludlow turned off his microphone and leaned down to whisper. “Gentlemen, it seems to me that my options are rather limited.”

Didery and I both assumed that he was about to tell us his course of action, but instead, the judge just stared at us with searching eyes. He literally had no idea what to do.

Didery took the lead. “Well, Your Honor, as you are obviously well aware, one clear option is to rule that the juror can’t be fair. Then you can excuse him for cause.”

“Yes, yes,” the judge said, nodding. I think I saw him taking notes. “I had considered that option.” He shooed us back to the counsel table with a wave.

“Mr. Eggers, I am ruling that you cannot be fair. I am excusing you for cause,” the judge said, likely reading his notes. “Good day, sir. We’re in recess, fifteen minutes.”

I texted Eddy during the break.

—Hey there. Are you free Friday? —

—Nope! Plans with you. How’s trial?—

—Tedious jury selection. Going to need to relax on Friday—

—Perfect. I know just the thing—

Back in the courtroom, Ludlow summoned the attorneys into his chambers before the arrival of the jury. “Gentlemen, my court reporter, Arlene, is exhausted. I assume there’d be no objection to waiving the reporting of the jury selection?”

Like nearly all of Ludlow’s suggestions, it was out of the question. In misdemeanor trials, jury selection was often not transcribed. However, in homicide trials, errors made in jury selection were occasionally the basis for an appeal. Waiving the reporting of the proceeding would be malpractice.

“I’m sorry, Your Honor. I can’t agree to that.”

“Joe,” Didery chimed in, “I certainly would agree to it and I think the judge’s suggestion is a good one, wouldn’t you agree?”

I wanted to throttle the pissant jerk. Didery knew full well I couldn’t agree to the waiver. Until now, we’d managed Ludlow’s ineptitude in a joint effort but now he was seeking to benefit from it. I filed it away.

“Okay, Mr. Turner, I can’t make you agree but I had hoped we could be reasonable,” he said, getting up and disappearing into his private bathroom.

I checked my phone before court began and saw a text from Chuck.

—Guess who got picked up last night?—

—Are you kidding? He didn’t make it one night?—

—For once, Oakland’s finest helped us out—

After another grand call to order, it was Didery’s turn to question the jury.

Whereas the prosecutor was a poor interpersonal communicator, in front of a jury, his nervous ticks and fidgets dissolved, leaving a confident and assertive speaker. Even his nasal tone wasn’t as off-putting, lending to his professorial affect. His questions to the jury were right out of the D.A. handbook. First, he focused on lowering the jurors’ expectations of the upcoming evidence as well as the burden of proof.

“Mr. Alison, do you watch the show Forensic Team on television?”

“I’ve seen it before, yes.”

“And how about you, Ms. Jennings,” he asked, addressing a kindergarten teacher of twenty years, “are you familiar with the show?”

“Actually, I was a big fan, but its last season was three or four years ago.”

“Wow, I need to update my material,” quipped the prosecutor to laughter throughout the courtroom. Who was this breezy charmer, and what has he done with jittery Didery?

“My point is, ladies and gentlemen, in the real world, we can’t obtain DNA off the head of a pin or trace a dust particle on the defendant’s shoe to a crime scene. Does that make sense?” My mind went to the shell casings. Was it possible he had neglected to test them?

Jittery continued, smooth as silk. “Mr. Hernandez, you’re a scientist, correct.”

“Essentially, yes.”

“Although the standard of proof is high, my burden is not to prove the case to a scientific certainty. As a person who deals in absolutes are you okay with that?”

“Yes, I would hope I could adapt to the law and decide accordingly.”

“Ms. Overton, there is a jury instruction that tells you that you may rely on one witness to prove any fact. That means that if one witness tells you that Mr. Moore committed this crime, the law says it’s okay to base your verdict on that witness.”

I hated this line of questioning, as it tended to distort the law. Some judges would have explained to the jury that the rule was still subject to the beyond a reasonable doubt standard of proof. I looked at Ludlow who, at the moment, offered the proceedings a vacant stare. There was a better chance of him sprouting wings and flying to the ceiling.

The social worker from Berkeley frowned. “That doesn’t seem right.”

“Will you promise to follow the law even if you don’t agree with it.”

“Uh, yes. If that’s the law, I will follow it.”

Didery’s questions continued after lunch and well into the afternoon session.

“Will everyone promise me that if I prove that Darnell Moore killed Cleveland Barlow beyond a reasonable doubt, you will return a verdict of guilty?”

The jury nodded in unison, and Didery sat down, having ended with an expression of absolute confidence in his case.

“Good afternoon,” I began, addressing the prospective jurors after the afternoon break. “My name is Joseph Turner and I represent Darnell Moore.” I briefly rested a hand on Darnell’s shoulder. “Ms. Jennings, I sensed some concern from you about the rule that you could rely on the testimony of one witness to prove a fact, including the fact that Darnell Moore committed murder?”

“Yes, it just doesn’t seem right that one witness could prove the entire case.”

“You are correct to be skeptical. The way the jury instruction was presented to you by Mr. Didery was somewhat misleading.”

Jittery was not pleased. “Objection, your Honor.”

“Mr. Turner, what are you getting at?” asked the judge, probably actually curious about the law himself.

“I was about to say that His Honor will instruct the jury that all of the instructions should be considered together.”

The judge nodded his approval, no doubt because I had referred to him as ‘His Honor’. “Continue, Mr. Turner.”

“One very important instruction is that in order to find Darnell Moore guilty, you must find that he committed the crime beyond a reasonable doubt. It is the highest standard of proof we have in the law. So while the rule cited by Mr. Didery says that it is theoretically possible to prove the case with one witness, in order to rise to the level of beyond a reasonable doubt, that witness would have to be extremely persuasive.

“For example, imagine a nun with twenty-twenty eyesight is robbed in broad daylight by her neighbor whom she has known for fifteen years. If her testimony is the only evidence of the crime, then Mr. Didery’s rule states that there is no rule that says you need more than one witness. Does that make sense, Ms. Jennings?”

“Yes, I feel much better about it now.”

I addressed the jurors as a group. “If you’re driving through your town’s main street and you see a man in handcuffs next to a police car, do you wonder what he must have done, or do you wonder if he is guilty of anything?

“Mr. Choi, how about you?” I asked the middle-aged insurance executive.

“Well…” He paused, grinning sheepishly. “I’m afraid I’d wonder what he did.”

“Yes, and that is a perfectly natural reaction. But as you can imagine that mindset is the polar opposite of how we operate here in Court. Rather than assume that Mr. Moore has committed the offense, he is presumed innocent. Right now, Mr. Moore is as innocent as anyone else in the courtroom.

“Mr. Edson, you look skeptical.”

“Yeah,” the beefy construction worker said. “It just seems like since we’ve gotten all the way to this point, there must be some pretty strong evidence against him.”

“That’s a good point, sir. Mr. Moore’s name wasn’t drawn out of a hat. But you said, ‘we’ve gotten all the way to this point.’ The reason that we’ve gotten all the way to trial is because Darnell Moore has been accused and he has said, ‘No, I’m innocent.’ At every stage, he has denied the charges and demanded his trial.”

I concluded the inquiry with questions about how they go about deciding if a witness is being truthful. Suggestions ranged from the consistency of the testimony to body language. My implied message to the jury was that I wanted the truth to win out. Also, I was subtly hoping to overemphasize the importance of Bedrossian’s testimony, the weakness in the prosecution’s case.

Ludlow called a halt to the proceedings at four-forty-five p.m. “Ladies and gentlemen, we have concluded the inquiry of prospective jurors. We will finish the jury selection tomorrow and then begin the trial itself.”

I wanted to gently remind the judge of my motion to suppress the gun, but he was off the bench well before the last juror filed out. However laughable, the prospect of Dudlow’s tiny brain trying to wrap itself around an actual legal issue, he was still going to have to try sometime.

My phone buzzed on the way out of the courthouse.

“Hi, Eddy,” I said, fixing my earbuds into place for the walk to the office.

“Did you get a jury yet?”

“No. In addition to being a bundle of nerves, turns out Didery is also long-winded. It was interminable.”

“So maybe you should try thinking of me instead?”

“Oh, trust me I have been.”

“Yeah? Bikini and whip again?”

“Yes, standing atop Machu Pichu in stilettos.”

“How professional of me.”

“I thought so, too. And it caused a few embarrassing moments when I had to stand and address the jury, so dress appropriately next time.”

“I’ll try,” she said, laughing. “Getting on the train. Bye, Turner.”

Entering the lobby of our office, I was greeted by the stoic figure of Elijah Jakes, sitting motionless, one hand resting on top of the curved silver handle of a black onyx cane. My introduction was met with silence, but he shook my hand firmly and followed me into the modest conference room I shared with Andy. He leaned heavily on the cane as he went, limping on his left foot. Chuck was already there. It was a good policy to have a third party observe witness interviews on the off chance the witness said something helpful and denied it later.

“Mr. Jakes, you must have quite a collection of canes. I noticed your carved cane the last time I saw you.”

“Thank you for noticing,” he answered in a gravelly voice. “My favorite one is a hollowed-out carved walking stick. Holds two ounces of liquor. Hidden screw cap on top. Another one I got turns into a sword. But I don’t suppose you want to talk about my canes, now do you?”

“Sir, I would be interested in knowing whether you saw the shooting.”

Jakes looked down at the table briefly, rubbing his black, wizened face with a bony hand.

“Look here,” he said, his eyes fixed on mine. “I don’t have any intention of saying anything that would help out the young thug you represent or any of his kind.”

I knew it was useless, but I had to try. “Mr. Jakes, if you could just—”

“Let me tell you something, Mr. Turner,” he said earnestly. “Gang members just like your client have ruined our neighborhood. And if your client didn’t do this shooting, then he’d do another one, taking someone else’s life from them. Now the cops are finally gonna get one of them off the street, and you’re asking me to help him?”

“You know,” he continued, “I opened the E&J back in seventy-five. Back then, it was a damn fine neighborhood. Don’t get me wrong, it was still Oakland. You had to watch yourself in a dark alley. But it was a fine place to live.” He paused, looking at the table for a memory.

“We used to open after church on Sundays. Families would come to the store. Kids would come and get ice cream. We’d sit and visit with each other on the porch. Usually had a ballgame on the radio. Now…” He shook his head, his raspy voice gone dry.

After he’d gone, Chuck and I sat in my office, sipping beers from the office fridge.

“You can’t put him on the stand, Joe. I believe him when he said he’ll never help us.”

“Yeah, but that would leave Jesse Wendell as our only witness.” I shuddered at that prospect. “Even if Jakes describes the number of shootings in the neighborhood, maybe it can show that literally every member of the Iceboyz is a potential suspect.” Chuck let my words hang in the air, withering away on their own. “I know. I’m reaching.” I sighed, draining my beer before heading out.

“Speaking of the eye-witness Jesse Wendell. Can you believe that scrawny, skittish little guy killed someone?”

“Yeah, hard to believe.”

On the walk home, a number I didn’t recognize appeared in my phone.

“This is Joe.”

“Hi, Mr. Turner. I spoke to your assistant yesterday. I’m the law student at Cal, looking for an unpaid internship?”

“Oh, yes. I meant to get back to you. It’s not a great time for me. I’m in trial and it would take some time for me to show you the ropes. Maybe try back in a month or so?”

“Actually, I know you’re in trial, Mr. Turner.” He paused before continuing. “I think I could be of some help to you.”

Now I was confused. The trial hadn’t gotten any press since Darnell’s arrest. Who was this guy? “Really?”

“Yeah. I’m Damon Wendell. Jesse’s brother.”