Friday, March 28, 2008


I was just a month into my legal career when I first encountered Bennie. Actually, I read all about him before we met, his case being an “inherited” one that was passed to me when his original public defender left the office to work in private practice. As I reviewed the file, just before Bennie arrived at his appointment, I read his former attorney’s notes about a man who shouted “that’s bullshit” to the judge at his arraignment, resulting in a thirty-day jail sentence for contempt of court. Bennie was now out of jail for that outburst, but he still faced the original charges of flight to avoid arrest, reckless driving, possession of marijuana, and driving under suspension.
The police report described Officer Kiley seeing a four-door Chevy Blazer make an illegal turn through a convenience store parking lot. When the Officer turned on his red overhead lights to pull the car over, it raced away from him, through traffic, and got away. The officer announced over the radio that a “black male” in his “mid thirties”, with a “medium afro” in a dark-colored blazer was last seen westbound on Lake street. The officer even described the license plate number as either NVG or NVB followed by 917.
Two hours later, according to the report, a different officer, Garrido, saw Bennie driving a blazer that “matched the description” announced over the radio hours earlier by Officer Riley. Officer Garrido pulled Bennie over, asked for his license and discovered that it was suspended. Officer Garrido then arrested Bennie, searched his car and found marijuana. When Officer Kiley arrived on the scene, he “positively identified the vehicle as the same one involved in a flight to avoid arrest two hours earlier.”
Case closed, right? As I speed-read Kiley’s report the first time, I thought so too. But as I read further, I saw that many of the conclusions Kiley reached didn’t make sense. Kiley wrote about chasing a “dark-colored Green or Blue Blazer”, but Bennie’s blazer was described as “green and tan” in the fine print of the police report. Kiley wrote about seeing a “black man, medium afro, in his thirties,” but that description applied to most of the population in that neighborhood at that time of night. Bennie was 34 and seemed to fit the description, but his hair was described as “braided” on the booking sheet. Kiley wrote that he initially described the license plate over the radio as “NVG or NVB 917” but Bennie’s license plate written as was “NOV 914” on the police report. Kiley wrote that when he asked Bennie where he had been two hours earlier, Bennie said he “couldn’t recall.” Kiley obviously concluded this was than a guilty person’s incriminating admission, but I knew this response may instead have been a street smart person’s conditioned response to a cop’s attempt to finger him. Each inconsistency made me question Kiley’s conclusions and made me wonder what Bennie would have to say at his appointment.
Bennie seemed to look at me a little suspiciously when I called out his name and asked him to follow me back to my office. We were roughly the same age, but while I had grown up as a white man in a small Nebraska town, he had grown up as a black in the state’s largest city. While I had visited Nebraska’s penitentiary one afternoon with my dad to visit a client, Bennie had been there for a couple years while in his twenties. We didn’t seem to have much in common at first.
When I told him that I thought the police report “seemed a little strange” Bennie perked up. “I’m telling you, they got the wrong guy,” he said, as he told me how he had been with two friends at a woman’s house until he was pulled over by Officer Garrido on his way home. Bennie gave me his friends’ names, but he also said they probably wouldn’t come to court, to testify about being with him when the police chase occurred, since they both had warrants for their arrests.
While I had reason to doubt Officer Kiley’s conclusions in the police report, I also had a reason to doubt Bennie’s alibi. He seemed honest enough to me, but he also seemed a little more guarded than a truly innocent man would be in this situation. It was as if he wanted to give me as little information as I needed about where he had really been when Kiley chased a dark-colored Blazer through Bennie’s neighborhood. I also doubted Bennie’s alibi since his former attorney’s notes- written in a jailhouse interview shortly after the incident- said that Bennie “wanted to plead guilty as soon as possible.” I didn’t know if this meant that Bennie wanted to get this case behind him quickly or if he truly had something to admit to. I didn’t know quite who to believe, in other words.
At this point I knew that I didn’t know much and that I needed to find out who was lying to me. Bennie professed his innocence throughout the interview and I wondered if perhaps he had to be able to trust me enough to tell me details about that night and where he had been. He proceeded with caution, as I asked him questions, and I wondered if he was worried about what his wife would think about him being at another woman’s house in the late night hours of a Friday night. Maybe Bennie was guilty, or maybe he was just telling me he “couldn’t recall” just as he’d told Officer Kiley that night.
I told Bennie I wanted to subpoena that tapes of Officer Kiley’s radio broadcast. By listening to them, I could hear exactly what Kiley said instead of just believing what he wrote about it in his police report. I also told Bennie that I would file a motion to suppress the stop of his vehicle. I told him I didn’t think we would win, but that we might and that we could win a lot of good information from the officers along the way. I expected Bennie to be impressed by my enthusiasm, but he wasn’t. “How long’s it gunna take?” he asked. I wondered why he was in such a hurry and then glanced at the bond information that his former attorney had written in the file. Bennie had already told me he was unemployed, so I was shocked to read that he had posted $5000 in cash to get out of jail. No wonder he was in a hurry.
I told Bennie I needed to take some pictures of his Blazer and discovered how this unemployed man raised $5000. The Blazer, he told me, was at Mid-City Pawn in downtown Omaha. Bennie needed a good lawyer to help him in his case, but he also had more pressing concerns, such as kids and a wife at home. He was without his wheels, without his money and without a job. I knew he didn’t want to go back to jail, but I also wondered whether his initial wish to “plead guilty as soon as possible” was an admission of guilt or a wish for certainty. By pleading guilty he could fallback into a world he knew, jail, and know exactly when his jail “out date” would be.
I was worried about Bennie. He had a bad record, a decent alibi with no available witnesses and a lawyer who cared but who was not yet experienced enough for prime time. Like Bennie, I knew the system was far from perfect and like Bennie I knew I had no choice but to press on and hope for the best.
I felt better when I listened to the tape recordings of Officer Kiley’s radio broadcast. As I expected, he “exaggerated” in his written report when he described what he thought he said over the police radio. In the report, Kiley described announcing that a “green or blue” blazer drove away from him. What he actually said, however, was “black or dark blue.” This helped Bennie’s case tremendously I thought because I allowed us to not only point out that Officer Kiley’s initial description didn’t match Bennie’s vehicle and also that Officer Kiley’s memory was not infallible. “After all,” I could argue to the jury, “if Kiley forgot what he said, perhaps he also forgot what he saw.” By itself, this inconsistency wasn’t much, but if I could combine it with other problems, perhaps it would add up to a reasonable doubt.
I transcribed the rest of the audiotape and prepared for the upcoming hearing on Bennie’s motion to suppress, or exclude from evidence, the results of Officer Garrido’s traffic stop. If it was successful by itself, this hearing would eliminate the State’s entire case against Bennie since all the evidence flowed from it. I knew our chances of winning this way were slim since the judge would decide whether Officer Garrido had a reasonable suspicion that Bennie was involved in criminal activity. Kiley’s description of Bennie’s vehicle wasn’t perfect, but it did describe a dark colored man in a dark colored blazer with a license plate number that was similar to Bennie’s. I knew the real fight was whether the state could prove beyond a reasonable doubt that Bennie was the driver, not whether the officer had a reasonable belief that Bennie might be the driver.
Our real goal in this motion hearing was to get the officers to commit to one version of events under oath. The way to ferret out who was telling the truth was to get them to talk about it several times so that any inconsistencies would emerge in the telling and retelling of the story. While the state dealt with my question about the constitutionality of the stop or seizure of my client, I would also be testing their case and teasing their witnesses into telling me things that could help my client at trial.
I was excited about the getting the chance to cross-examine Kiley at the hearing. The word around the office was that he was a bit of a “hothead” and that he would be upset about having his identification second-guessed. One co-worker even told me Kiley put on forty pounds of muscle in the last couple of years, and hinted that he may have had a little bit of “help” in the weightroom. I had been around guys who used steroids since high school and I knew that a side effect was a quick temper. I couldn’t wait to try out a real cross-examination and to try to see if Kiley would get as mad in the courtroom as Bennie described him being at the side of the road. I spent a lot of money- and a lot of late nights working- to get my license to practice law. It was exhilarating put the theories I’d learned in law school into practice with a live witness in front of a real judge.
At the hearing Bennie stood beside me. In law school, I imagined being able to sit at the counsel table for trials, but in Douglas County Court, trials were embarrassingly held right in front of the bench, with witnesses, lawyers and clients standing in front of the judge. While this wasn’t glamorous, it meant Kiley and I were only two feet apart, looking directly into each other’s eyes, as he told the judge why he thought Bennie was the person who ran from him that night.
Direct examination from the prosecutors was always predictable. Kiley simply restated what he wrote in the report. The prosecutor occasionally interrupted with “and then what happened?” and the story continued. The prosecutors always concluded with “and did all events occur in Omaha, Douglas County, Nebraska” to establish venue. Bennie tried to get my attention several times as Kiley talked, but I held up one finger to shut him up, as I scribbled things he said that I wanted to quote back to him.
When it was finally my turn to ask Kiley questions on cross, I quickly discovered that I did better when I simply talked to him, instead of reading from the questions I had written in my notes. It was my first real cross, and I was not quite ready for a murder trial, but the skills it required seemed to come more from the common sense I had learned than throughout my life than from anything my professors had taught me in the three years I spent in law school. It was just a conversation that told “the rest of the story” that the prosecutors had just started.
I asked Kiley if he was positive that his report was accurate it stated that he announced “green or black” immediately after the chase. He said he was “pretty sure.” I then played the tape for him and he had to admit that he really said “blue or black.” His eyes started to narrow at me when I brought out the tape recorder and they continued to until I asked him, “Now Bennie Harris’ Blazer isn’t blue or black, is it Officer Kiley?”
I continued like this until I got him to admit that Bennie’s blazer was two-toned and that his original description said nothing about this, that the license plate didn’t match, and that “black male, medium afro, mid thirties” didn’t really narrow down the search very much. Once, when I asked him if he had taken the time to review his reports before testifying, he retaliated with “well, I wasn’t able to take as much time as you had to prepare for this hearing.” I knew these remarks would play well to the judge who would be questioning whether this man was acting professionally or not. The more he acted irrationally in the courtroom, the easier it was for to argue that he’d been irrational in the field.
I struggled with some things, such as laying the foundation to place the photographs my investigator had taken of Bennie’s blazer into evidence. Judge Barrett was a little like Seinfeld’s “Soup Nazi.” He didn’t have much patience for people who stood before him who didn’t know exactly what they wanted and didn’t cut anyone any slack, no matter how long they’d been practicing law. He finally received the pictures into evidence, but I suspected he allowed me to do this more to speed things up than because I complied with the rules of evidence. I rested and in closing argument pointed to the pictures, arguing that Kiley’s conclusions, such as that Bennie and his vehicle both “matched the description” given initially by Kiley, were not supported by the evidence. I reminded the judge that it was his job to reach these conclusions and that Kiley’s many inconsistencies left him with no choice but to conclude that his anger led him to finger the wrong guy.
As I suspected, the judge found that Officer Garrido had enough suspicion to stop Bennie. I knew I’d gotten to Kiley, though, because Bennie’s brother told me he charged out of court after the judge ruled and and shouted “you got jacked” to Bennie’s brother, laughing in triumph. The next day, I laughed too when our investigator told me that at the bar last night a drunk Judge Barrett told him to tell me to “push” Kiley at trial, so that he would get mad again. Evidently Judge Barrett saw our point even as he decided against us.
Next came the jury trial. I made a mistake at this phase that I have never forgotten. Bennie wanted a jury trial and I wanted to try the same techniques against Kiley that I practiced in the suppression hearing. I wanted to follow Judge Barrett’s advice and let the jury see how mad Kiley could get. But I felt like I might have been sending my client charging off into a battle that I might not have been able to win. So I asked for the help of a more experienced attorney whom I greatly respected. Peder was worried about winning the battle and losing the war. He felt that we might win on the flight to avoid arrest and reckless driving charges but that the jury would undoubtedly convict Bennie of the driving under suspension and of possession of marijuana. Peder thought that Judge Swartz, who would preside over the jury trial and sentence Bennie upon conviction, would “max” Bennie on the driving under suspension charge because of his record, sending him to jail for ninety days and revoking his license for a year. Peder thought Bennie would be better off waiving or giving up his right to a jury trial and trying the case before a different judge in the future. That judge, the logic went, wouldn’t be as likely to “max” Bennie on the suspension charge, so he would take less risk doing things this way. Bennie persisted, however. He kept saying, “I don’t care. I can go to jail. But I aint pleading to nothing I didn’t do. And I’d rather take my chances with the jury trial.” If I had to do things differently, I would have let Bennie decide. After all, it was his life, his time and his precious right to a jury trial we were dealing with. But at the time, I thought Bennie would be better off following my more experienced colleague’s advice. I worked on Bennie, told him Peder knew what he was doing and that he shouldn’t take an unnecessary risk. If I had the chance to do it over again, I would have let Bennie choose, without “working on him.” As long as he knew the risks, they were his risks to take.
Bennie reluctantly signed the form waiving his right to a jury trial. I was relieved in a way because this allowed me to catch up on the enormous amount of work waiting for me, but I was also saddened. I knew there were problems with the prosecution’s case that would have been better argued to a jury, but I listened to my colleague instead of my client. As Bennie walked away, he looked at me doubtingly, as if to say, “why did I trust you?”
I saw Bennie again at his ‘bench” or judge trial about a month later. The judge was more understanding, but also more likely to believe the officer over the convicted felon. I was worried about Bennie’s fate but there wasn’t time to hesitate. Judge Lowe was a smoker and I knew he grew antsy on the bench and enjoyed trials, especially those that were quick and didn’t cut into his lunch hour or smoke break. Officer Kiley testified almost exactly as he had at the suppression hearing, positively identifying Bennie as the man he’d seen driving away from him. I thought he did better the second time around and worried even more.
Now I had one more month of experience under my belt, giving me a total of two or three month’s worth. I started cross-examining Kiley just as I had the last time, but he did much better. I had inadvertently given him a “dress rehearsal” earlier and he was panticipating my questions and lessening their impact. He grew confident, almost cocky, in his responses. Things were not looking good.
And then, Bennie was given a gift, which he sorely needed. When I asked Officer Kiley about whether he was angry when he saw Bennie at the side of the road, he blurted out, “Well, I knew about his terrible record and I was worried about what he might do.” Before I had a chance to respond, Judge Lowe shouted out. “Officer, you will refrain from commenting on the extent of people’s past records in my courtroom unless I ask you about it when the trial is over!” Turning to me, the judge then said, “If counsel would like to make a motion for a mistrial, I’ll certainly entertain it.”
I said something only slightly more intelligent than “Yeah, I want whatever you just said” and Judge Lowe said “motion granted.” The prosecutor then moved to dismiss, without prejudice, and suddenly Bennie and I were in the hallway, wondering what the effect was of what just happened. Kiley looked worried and as confused as we did. I knew we didn’t win outright because the dismissal “without prejudice” meant that the prosecutors could refile the same charges at anytime. I knew they would do this by the end of the week and that Bennie would be facing a new trial soon on the same charges. We didn’t win, we just lived to fight another day with perhaps a better outcome.
Because Bennie’s case was dismissed, it was filed again under a different case number. This was significant to me because I had quickly learned a universal truth about the criminal justice system. The possible plea bargain your client was offered depended more on bargaining position than on anything else. I knew that Bennie was doomed unless I could convince a prosecutor to recommend a light sentence to the judge or to drop the most serious charges. I knew they would not do this unless I could give them a good reason. I had already let one of these good reasons fall by the wayside. The best time to get a good plea offer was just before a jury trial, when the prosecutors would typically offer a defendant in all but the most serious cases a deal he or she could hardly refuse. I knew I had blown Bennies’ chance the first time and I wanted to turn back time. I knew I had to argue that Bennie received a new right to a jury trial since his new case number meant this was essentially a new case.
Knowing how important this was, I filed a motion to demand a jury trial and argued this point to the judge. He simply said “denied” and we were right back where we started: facing a trial before a judge, with a bad record, an angry police officer and misdemeanor charges that carried up to two years in jail.
At Bennie’s second bench trial, I worried again. I was prepared, but evidently not well enough. As I talked to Bennie in the hallway, his brother stood beside us. Bennie told me that two days ago his brother had seen a pure black blazer with a license number that matched Kiley’s original description perfectly. Not only that, but he had taken photos that clearly showed this. “We should win, shouldn’t we?” Bennie asked. As a person , I agreed with him, but as a lawyer I knew things weren’t always so simple.
I decided to take a chance. I took the photos to the prosecutor and told him I thought he had charged the wrong guy. The proof was in the pictures, right? Prosecutors tend to be very skeptical, even cynical, so the prosecutor called Kiley over to run this new “story” by him. Kiley went out into the hallway, used his radio, and returned with a smile on his face. I saw him talk to the prosecutor and saw them laughing together. I knew they didn’t laugh when things were going to go well for my client. The prosecutor then told me that Kiley had checked with his dispatcher and that this plate was registered to a red Blazer and that the plates were issued only a few months ago, before Bennie allegedly fled from Officer Kiley. “Nice try,” the prosecutor’s look said, “but your guy did it and he won’t get away with it.”
I didn’t know what to do. I knew that the things the dispatcher told Kiley, such as the fact that the plate was newly issued, wouldn’t come in at trial, but I was still nervous about going forward without a chance to prepare and investigate this new information. What if Kiley was lying and the plate was issued at the time Bennie was picked up? If I could demonstrate this, I could almost guarantee a win, no matter how confidently Kiley was in his identification of Bennie. I knew that if I could research the history of the plates and perhaps find out that they were issued to a black man with a medium afro in his thirties on the day Bennie was arrested, even the meanest judges would find Bennie not guilty. But I couldn’t go forward until I checked this out and prepared.
I asked the prosecutor whether he would oppose my request for a continuance and he told me that Kiley wanted to hurry up and take his kids to “Blue’s Clues on Ice” so he didn’t have any problem postponing the trial.
A week later, I sat in the office of the prosecutor who was known as the “fairest of them all.” I had done my homework and showed her that a Blazer with a license plate number, that exactly matched Officer Kiley’s original description, was registered to a black male, age 32. I showed her the photos of the other Blazer and told her I thought they charged the wrong guy. She sighed and said, “it looks like a lot of work.” She offered to dismiss the flight and reckless drinvign charges if Bennie would plead guilty to driving under suspension and to possessing marijuana. She told me that she had to ask for jail time because of Bennie’s bad record, but I knew she wanted to cover herself in case a steroid-fueled cop screamed at her for letting one get away. The clincher was that the prosecutor was only asking for jail time in name only since she would tell the judge to give Bennie credit for the thirty days he had already served for saying “that’s bullshit” at his arraignment hearing. In other words, the prosecutor was offering Bennie he chance to plead to the charges he could easily be found guilty of without having to pay any additional penalty. I guess she saw Bennie’s point at yelling “that’s bullshit” but she still needed to protect herself in case her boss or the officer second guessed her later.
Bennie entered a plea of guilty before Judge Barrett. The judge said, “Mr. Harris, you are either the luckiest man I know or the unluckiest.” Bennie just stood there, not sure whether to trust his public defender who told him this was the best outcome or to follow his own instincts which probably told him to fight instead of to trust. After holding us both in suspense, the Judge follwed the plea agreement and sentenced Bennie to thirty days, with credit for the time he had already served. On the way out of the courtroom, I saw a rare smile creep into Bennie’s face. “You mean I get my bond money back today too?” Bennie asked me. He surrendered $500 of this bond as a “bond fee” but Bennie didn’t seem to care. For the first time, he looked at me as if he believed in me. “You did alright” he said, nodding his head. “You did me alright.”
A couple weeks later I was walking across the street when a Blazer rolled down it’s window and Bennie smiled at me as he slowed down. “I finally got to see it,” I yelled. “It looks beautiful and you’re back on the street!” Bennie yelled back that he’d just gotten it back out of the pawn shop.
The prosecutors seemed to think that a guy like Bennie would be “in the system” forever, but I have only seen Bennie once since that day, as he was standing in line to pay for a simple traffic ticket.
Officer Kiley caught me one day in the hallway and asked, “whatever happened to the guy with the Blazer?” Part of me wanted to say, “You got the wrong guy and everybody could see it but you” but I knew I would never convince him. I also knew that if I threw this up in his face and took personal glory, Bennie would have to watch his back. After all, Kiley worked the night shift in Bennie’s neighborhood. I didn’t think Kiley was necessarily underhanded or corrupt, but I knew he would take revenge if the opportunity presented itself.
With that in mind, I twisted the truth and smoothed things over, so that Kiley would walk away happy and Bennie could get back to his routine. “Oh, that guy,” I said, as if this was yesterday’s news. “He pled guilty and got some time in jail.” Kiley smiled, as if he were appeased. I knew that if I tried to have the last laugh in this case the battle between Kiley and I and between Kiley and Bennie would continue.
Several months later Kiley foiled an armed robbery by chasing a fleeing car and jumping on the hood as it sped away. He spent a couple days in the hospital, but he made the arrest and gained the reputation as a “bad ass.”. After I heard this I had a new respect for what his job put him through and how he responded. I was glad to have to face off against him in the courtroom instead of on the street. I knew Bennie was innocent, that Kiley was mistaken, but I also know that Kiley believed he had “got his man.” Once he reached this conclusion, he wasn’t going to let some defense attorney convince him otherwise. Like Bennie, Kiley was hardened by what he’d seen on the streets. They both survived by trusting their instincts. I could only hope that their paths didn’t cross again.

No comments: