Black Mark, page 16
“Good to see you, buddy,” I said. “How are you doing?”
“Hey Mick, Casey. Good to see you too.” Elliott sighed. “I’m okay. Can’t say I’m happy to be here, but I gotta get used to it.”
Casey pulled out a notepad. “Tell us about your situation here. Has anyone talked to you about protective custody?”
“Yeah, they put me in the administrative segregation wing. That’s all they’ve got, so I’m in with all the disciplinary cases. Still, it keeps me out of general population. Given my condition, that’s a good thing.”
“Okay, good to know. We’ll stop by the administration office on our way out, see if there’s anything we can do to make it better.” Casey made a couple of notes on her pad.
“Thanks.” Elliott looked at me. “How’s life on the outside?”
“Not the same without you. By the way, I talked to Billy yesterday. All the NNC crew were asking after you.”
“Yeah, I bet they were. Now I’m gone, they’re all upset because they’ve got to do some work for a change.”
I laughed. “Ha, probably. Hey, we filed our motions in response to discovery this morning. Hearing on them should be in a couple of weeks.”
“Good,” Elliott said, his face hardening. “I want to know what kind of bullshit the cops made up about shooting me.”
“Yeah, us too,” I replied. “Also, I went to see that gun store owner. Not surprisingly, he’s your standard issue racist nutjob. It’s early, but I think Casey can destroy him on the witness stand.”
Casey frowned at me. “Careful. You don’t know that.”
“Come on, you got this.” I wanted Casey to agree, if only to make Elliott feel better, but all I got out of her was a slight nod.
We talked for a while longer. Elliott told us about the last couple of days. The new back brace gave him a greater range of motion than the body cast. However, he still needed help to use the bathroom. But he was now able to spend most of the day out of bed and using the wheelchair, so that was an improvement.
We stopped by administration when we were done, as Casey had promised. I was pleasantly surprised to hear that Buchanan had made it very clear Elliott was to be protected, with the staff under strict instructions to make sure he was never left alone with other members of the prison population.
We set off back to the office, and my phone rang as we pulled onto the Interstate.
“Hey, Tony, what’s up?”
“Hey, Mick. I got some more information on our friend Kavanagh.”
“Great. Hold on a second. I’m in the car with Casey, so let me put you on speaker.” I put my phone on the center console. “Okay, what have you got?”
“I found out about Kavanagh’s disciplinary record. He’s got a file, all right. A thick one. I don’t know where the crap we got in discovery came from, but it sure as shit isn’t Kavanagh’s actual disciplinary record.”
Casey’s head jerked back. “Are you sure?”
“My guy’s never let me down before.”
“Interesting,” Casey said. “I’m going to amend our motion to compel as soon as we’re back at the office. Thanks, Tony. Anything else?”
“No. Mick, I’m looking into Donald Martin, but there’s nothing obvious linking him to Elliott or the case. This could take a while.”
“I know,” I said. “Do what you can. We can take another swing at him after the motions to compel. Maybe we’ll get something that connects to him.”
“Maybe.” He didn’t sound confident.
“Thanks, man. Talk to you later.”
Back at the office, Casey and I spent a couple of hours beefing up our discovery motion on Kavanagh’s disciplinary record and filing the amended version. Casey called Judge Obrecht’s clerk, to make sure the judge got it before he left for the weekend. The clerk told us that the hearing on both motions we filed was scheduled for a week from Thursday.
I finished up work and went home. Around eight, I was hungry, so I wandered over to Holman’s. The bar was mostly full, but there were a couple of empty stools, so I grabbed one. When Jeremy saw me, he waved the vodka bottle at me and raised his eyebrows. I nodded.
He made my drink and brought it over. “Hey, Mick, how’s life?”
“Hey, Jeremy.” I jerked a thumb at the kitchen. “Any specials tonight?”
He looked nervous. “Irish stew.”
“I’ll bet that’s selling great in this heat. I’ll take a burger, please.”
Jeremy smiled and went off to put my order in. I sat there and sipped my drink for a while, then finished it and gestured for another.
I sat there, toying with my drink and trying to think about anything except Elliott sitting alone in his cell. It had been almost two months since we found Malik Betts’s body, and we were still no closer to figuring out who set the whole thing up. If anything, we had even more questions now. Who put Donald Martin up to testifying against Elliott? And why choose him? Meanwhile, what happened to Sam Kavanagh’s disciplinary record? The answer to any one of these questions might break the whole case open, but we had nothing.
“Are you okay, Mick?” Jeremy put my burger down in front of me.
His voice snapped me out of my reverie. “Yeah, I’m fine. Why?”
“You looked like you were a thousand miles away.”
I felt like I was a thousand miles from finding any answers.
“I’m just tired,” I said. “Can I get that burger to go?”
TWENTY-EIGHT
ALTERNATE REALITY
The hearing on our discovery motions was scheduled for 10 am, so Casey and I arrived at Multnomah County Courthouse around 9:45am. The courthouse was a concrete and stone structure with Greek-style columns dominating its imposing façade. It had been in use since 1909 and was due to close next year. The building needed a comprehensive seismic retrofit, which the County had determined wasn’t cost-effective, so they built a new courthouse instead. The new building, a modern glass and steel design four blocks to the east, lacked the gravitas of the current one and I couldn’t help feeling that something special would be lost when this place closed.
We took the elevator up to Judge Obrecht’s courtroom on the third floor. As the elevator doors opened, Detective Buchanan was standing outside. He made to get in, then saw us and stepped aside, not meeting our eyes as we passed. He got in the elevator and the doors closed behind him.
“Strange for him not to say anything,” I said.
Casey nodded. “Yeah.”
Unlike the utilitarian Justice Center hearing room used for Elliott’s arraignment, Judge Obrecht’s court was a classic old-style courtroom. All the furniture was dark wood, polished and foreboding. The floors were marble tile and our footsteps echoed off the vaulted ceiling as we made our way to the defense table. Nicole Astert was already in place at the prosecution table. She didn’t look up from her files.
Judge Obrecht emerged from his chambers at precisely 9 am. He was a short, rotund man with thinning brown hair and thick wire-rimmed glasses. He pulled back his chair, smoothed his flowing black robe, and sat.
“Good morning, all,” he said. “Today we’re going to proceed on three motions filed by the defense. I have a motion to exclude Mr. Russell’s prior record, and two motions to compel discovery. Ms. Raife, is that correct?”
“Yes, Your Honor,” Casey said.
“And are you ready to proceed?”
“I am.”
“And you, Ms. Astert? Is the prosecution ready to respond?”
“We are, Your Honor,” she replied.
“Good.” Judge Obrecht shuffled some papers. “I’ve read the motions and the prosecution responses. I think the issues are clear in each case. We’ll deal with the issue of Mr. Russell’s record first, then move on to the two discovery requests. Ms. Raife, you believe that Mr. Russell’s record is inadmissible?”
Casey stood up. “I do, Your Honor. It is well established that evidence of prior crimes is not admissible to show that a defendant acted in a similar manner in the current case. Yet the prosecution seeks to use my client’s arrest for firearms possession more than a decade ago as evidence that he is a killer. Clearly, such evidence cannot be admitted.”
“Ms. Astert?” Judge Obrecht said.
“Your Honor, evidence of past crimes is admissible as proof of motive, opportunity and intent. In this case, the defendant was arrested with a firearm mere days after the deceased killed his brother. The evidence is admissible to show that the defendant is able to obtain firearms, and that he had a longstanding motive to murder Mr. Betts.”
“Oh come on, Your Honor,” Casey said. “The prosecution is talking about my client’s state of mind ten years ago. How can that possibly have any relevance to current events?”
Nicole made to reply, but the judge held up a hand to stop her. He looked at Casey. “Ms. Raife, it’s unusual to seek to exclude evidence this early in proceedings,” he said. “And the prosecution has a point about relevance as to motive. So I’m going to defer my ruling on this motion. Let’s see how things play out and I will reconsider at the pretrial evidentiary hearing.”
“Yes, Your Honor,” Casey replied.
Judge Obrecht opened another folder on his desk. “Moving on. The matter of Officer Sam Kavanagh’s disciplinary record. Ms. Raife, you claim that Officer Kavanagh has an extensive disciplinary record that was not provided to you in discovery, despite your request. Correct?”
“Yes, Your Honor. We have credible information from a reliable source stating that Officer Kavanagh has been the subject of disciplinary action on several occasions.”
“And why is Officer Kavanagh’s record relevant to this matter? As the prosecution’s response states, this case is about the murder of Malik Betts. Mr. Betts was long deceased before Officer Kavanagh entered the picture.”
“Your Honor, the defense contends that Mr. Russell is the victim of a conspiracy. The same person or persons who murdered Malik Betts placed his body in Mr. Russell’s yard to frame him for the murder. Shortly thereafter, Mr. Russell was the victim of an unprovoked shooting by Officer Kavanagh. Material is discoverable if it is reasonably likely to lead to the discovery of admissible evidence. We have a right to review Officer Kavanagh’s record for information relevant to the defense theory of the case.”
Nicole rolled her eyes. “Your Honor, the defense is clutching at straws. This fishing expedition cannot be allowed. And besides, the prosecution turned over all the information made available to us. My office requested Officer Kavanagh’s full record from Central Precinct command. If no disciplinary file was provided, I can only assume the file does not exist.”
Judge Obrecht raised his eyebrows. “Ms. Astert, as you are aware, this is a capital murder case. As such, you need to do better than just assume. When no file was provided, did you call Central Precinct to check whether they had any disciplinary records for Officer Kavanagh?”
“No, Your Honor.”
Judge Obrecht frowned. “I see. Lieutenant Hayes is still in command of Central Precinct, is he not?”
“He is, Your Honor.”
“Then you will call the Lieutenant immediately upon leaving my courtroom today. Inform him that Ms. Raife’s office is to receive Officer Kavanagh’s entire disciplinary record by close of business today. Every last scrap of paper. Make sure he understands that I will be most displeased if it is not delivered.”
“Yes, Your Honor. The prosecution has one request, though. We need time to review the file and potentially redact sensitive information relevant to ongoing investigations.”
“Very well. You have one week from today. And in future, please do not assume others are complying with their legal duties. As the lead prosecutor on this case, it is your responsibility to ensure that they do so. Is that also clear?”
Nicole bowed her head. “Yes, Your Honor.”
“Thank you. Now, our final matter—records related to Mr. Russell’s arrest.” Judge Obrecht took his glasses off and pinched his nose. “The law in this matter is clear. Discovery is broad and inclusive, particularly where necessary to protect a defendant’s rights in a capital murder case. Ms. Astert, you claim the material is not relevant, but relevance is only an issue if Ms. Raife tries to introduce evidence at trial. It does not affect whether it is discoverable, as any second-year law student would know. So, I am going to rule in favor of Ms. Raife and order the material to be disclosed immediately. And I am again going to remind you to comply with your legal obligations to the defendant.”
Nicole took a deep breath and nodded. Casey and I smiled at each other.
“Don’t get too excited, Ms. Raife,” the judge said. “My ruling comes with a strong caution. I have reviewed the material in question. It includes graphic footage of Mr. Russell being shot during his arrest. This city has suffered violent unrest on a nightly basis since the death of Andre Gladen. Should this video be made public, I shudder to think of the chaos that would follow. I thereby order that the material be sealed. Ms. Raife, you and your team are to treat it with utmost confidentiality. Rest assured I will impose the strictest possible sanctions for failure to do so.”
“I understand, Your Honor,” Casey said.
Judge Obrecht banged his gavel. “In that case, we are adjourned. Good day.”
We stood, and the judge left the courtroom. Nicole gathered her files and hurried out, clearly chastened by the judge’s criticism.
“That could have been worse,” I said.
“Yeah. Let’s get back to the office. I want to be there when that video arrives.”
We stopped at Bae’s and grabbed takeout fried chicken sandwiches on the way back. Once we returned to the office, we set up around the conference table and ate our lunch in silence. I finished my sandwich, balled up the wrapper and tossed it at the trash can. It bounced off the rim and rolled under Casey’s desk.
“Don’t give up the day job,” she said.
“Yeah, because it pays so well.” I reached under the desk for the wrapper, put it in the trash and sat back down. “Sounds like Judge Obrecht won’t take any crap from the prosecution. That should be good for us.”
“Definitely. But it means we’ll have to be sharp as well. He won’t take any crap from us either.”
“True. Anyway, I’m going to get back to work. Give me a yell when anything comes in from the DA’s office.”
I went back to my folding desk in the copy room and dived into my legal research task list. I’d been at it for about an hour when a courier arrived at the office. Casey accepted a package and opened it.
“Looks like a USB drive and a note.” She unfolded the note. “Says here the arrest material is on the USB, and that it’s encrypted and copy-protected to prevent us making duplicates. Want to check it out with me?”
“Of course.”
“Okay. Notes from the investigation into his shooting are also enclosed. Oh, and get this for a shock development. Apparently, Officer Sam Kavanagh does have a disciplinary file. They’re going to do their redactions and get it to us by Wednesday of next week.”
“What a shock.” I pointed at the USB drive. “Right now, I want to see what’s on that.”
Casey grabbed her laptop and plugged the USB drive in. It contained a single compressed folder.
“Looks like some PDFs and a video,” Casey said. “I think we start with the video.”
“Definitely.”
Casey opened the video file. It was from a patrol car dashcam, with the date and time shown in the bottom left corner. The video began at 10:13pm on June 18, the night Elliott was shot. The video showed the back of Elliott’s car, a ten-year-old red Honda Civic. The patrol car’s flashing lights played a red and blue strobe effect on the Honda.
A police officer entered the shot from the left, moving toward Elliott’s car, with his gun extended. I assumed it was Kavanagh.
“Get out of the car slowly, hands on your head,” he shouted.
Elliott said something in response, but the audio wasn’t clear enough to understand him.
“I said get out of the car!”
Elliott’s door opened slowly, and he emerged, hands on his head. He stood upright and went to say something. Before he could get a word out, Kavanagh fired three shots in quick succession, the noise startling us both. Elliott jerked backwards as the shots hit him, slammed into his open car door, then slid to the ground.
After the roar of the gunshots, the sudden silence was eerie.
Another officer appeared on screen from the right. He ran toward Elliott. “What the fuck are you doing?” he yelled.
“He went for his gun! I had to fire!”
“His hands were on his head! I didn’t see a gun!”
“You were in the car. You can’t see anything from back there!”
“Shit, he’s fucked up.” The officer knelt by Elliott. “He’s still breathing. Call an ambulance! Now!”
Kavanagh didn’t move. The other officer looked back over his shoulder. “Call a goddamn ambulance!”
Kavanagh still didn’t move, so the other officer grabbed his shoulder microphone and radioed for an ambulance, then he bent over Elliott.
“Can I have some help, here?” he yelled. “He’s bleeding real bad!”
Kavanagh ignored him and walked back to the patrol car. He leaned in and reached for something on the dashboard. The screen went black.
Casey and I stared at each other, eyes wide.
“Fuck me,” she said eventually.
“Play it again.”
By the time the second run through ended, I was so angry I could barely speak. I took a deep breath and composed myself. “I don’t know about you, but to me it looked like Kavanagh set out to execute Elliott.”
“Careful with that word,” Casey said.
“What else do you want to call it?”
“It sure as hell wasn’t a regular traffic stop. I can see why the judge wants it sealed.”
