Try Fear (6 page)

With that he turned around and billowed back behind the coffee bar. I went back to my legal research. And it occurred to me
Pick and I were more closely related than I thought.

He did not have a corporate headquarters to help him. Or to answer to. And I was trying to defend clients without the resources
of a big law firm behind me.

But I didn’t want one. Because canaries died in law firms, too.

Once, when I was a new associate at Gunther, McDonough, I was in the kitchenette in our office getting a drink of water. One
of the partners wandered in.

It was strange, because he was the kind of man who never wandered anywhere. He was the quintessential go-getter, a creature
of constant motion. Exactly the kind of high-powered lawyer who makes it big in the kind of high-powered law firm I’d joined.
He made many hundreds of thousands of dollars every year. I wanted to be him.

He was not wearing a tie. But he always wore a tie. He was always, in fact, impeccably dressed.

No tie, and the first three buttons of his shirt were undone.

He looked at me, and looked sick.

“Are you all right, Mr. Henry?” I said.

His look changed not one bit. “How long have you worked here?” he said.

“About six months.”

He laughed. Which jolted me, because he never laughed. “You know how many years I’ve been here?”

“No.”

“Twenty-two. Twenty-two years I been coming in, day after day.”

And then his eyes grew dark, as if gazing over the desolation that is lost youth. “Why am I doing this? I should be on my
boat. I should be out on my boat.”

Before I could say anything else he turned and walked away.

I finished my water and threw away the cup. As I walked out of the kitchenette to return to my office, I looked down the long
hallway.

Mr. Henry was there, ambling slowly toward the other end of the building. I watched him. Every so often he would reach out
and tap the wall with his hand.

One month later he was dead.

M
ONDAY MORNING
I drove to the Hollywood courthouse.

Carl and his mom and brother were waiting for me outside Department 77. The three of them took up an entire bench, with Mom
in the middle. Parts of Carl and Eric drooped off the ends of the bench.

They stood up as one to greet me.

Carl was dressed in the same tie and coat he had on at the arraignment. He had his lucky Dodgers hat on. Fine. We could use
any luck that was hanging around.

“Do I have to take the stand or anything?” Carl said.

“No,” I said. “I’m just going to argue some law to the judge.”

“What law?”

“The Constitution of the United States.”

“That covers drunk driving?”

“Stupid,” Eric said. “All them founding fathers were drunk. Of course it covers it.”

“Thanks for the history lesson,” I said. “Let’s just go in and have a seat and we’ll see what happens.”

“I got confidence in you,” Carl said.

K
IMBERLY
P
INCUS WAS
dressed in a fire engine red suit with a white blouse. Her hair and makeup were perfect, of course. Her demeanor less than
collegial.

“This is a waste of time,” she told me as I joined her at the counsel table. “Why are you doing this?”

“It’s the system we got, Kim.”

“It’s Kimberly, and you can call me Ms. Pincus, and I can’t possibly see any point to this except showing off for your client.”

“I’m stunned,” I said. “You are an officer of the court. We all get to have our day, even those who are accused of misdemeanors.”

“You don’t really believe that, do you?”

“Ms. Pincus, I’m shocked. Shocked.”

The judge entered the courtroom.

“You’re going to get shocked right out on your ear,” Ms. Pincus said.

I
THOUGHT SHE
might be right, because Judge Solomon did not seem in a cheery mood. She called the case and said, “So are you really going
to press your 1538.5?” She was referring to the penal code section dealing with motions to suppress evidence.

“Yes, Your Honor,” I said. “It was a warrantless stop. As such, it is presumptively invalid. The burden of proof passes to
Ms. Pincus. She must present evidence that justifies an exception to the warrant requirement.”

“Ms. Pincus, do you agree?”

“I agree only that this is a waste of time, Your Honor,” she said.

“Then all you have to do is provide a justification for the stop, Ms. Pincus, and you can have your precious time back.”

It sounded to me like Solomon was a little put out with the prosecutor. For whatever reason. Which gave me the slightest bit
of hope.

“Call your witness,” the judge said to Kimberly Pincus.

Patrol Officer John Caldwell of the LAPD took the stand and was sworn. He was a P-2, had been on patrol for three years. He
looked young and still idealistic. That usually fades for a cop by year five or six.

That said, he was the kind of officer who would look extra hard for a stop if the conditions were right. And that pre-Christmas
night on Hollywood Boulevard, they were. You don’t often get a six-foot-five Santa driving your beat.

The key part of the testimony came when Ms. Pincus asked, “And what did you observe?”

“The defendant, driving a Camaro, without his seat belt on.”

“Anything else?”

“He was wearing what appeared to be a Santa Claus hat, and no shirt.”

“And what did you do next?”

“I dropped behind him, and my partner activated the lights and we pulled him over just past Gower. I approached. The driver-side
window was rolled down. I observed the defendant in the car and detected an alcoholic-beverage smell. I shined my flashlight
in the car and saw an open bottle on the passenger side. When I asked the defendant if he had had anything to drink, he answered
no, but his speech was slurred and his eyes were watery. That’s when I ordered him out of the car for the field sobriety tests.”

Kimberly Pincus turned to the judge. “As the only issue is reasonable suspicion to stop, Your Honor, that concludes my direct
examination.”

“You may cross,” Judge Solomon said to me.

I almost didn’t hear her, as I was flipping fast through my copy of the vehicle code.

“Mr. Buchanan?” the judge said.

“If I may have just a moment, Your Honor.”

“Oh sure,” she said. “We don’t have anything else to do today.”

“Thank you,” I said, riffling. “Just one sec—”

And then I found it.

“O
FFICER
C
ALDWELL
,” I said, “you stated that you observed the defendant driving without a seat belt, is that correct?”

“That’s right,” the officer said.

“You did not see any erratic driving, isn’t that true?”

“That’s correct.”

“In other words, you didn’t suspect that Mr. Richess might be driving under the influence, did you?”

“Not at the time of the stop, no.”

“In fact, it wasn’t until you had pulled him over and approached the car, and looked in the window, that you developed a suspicion
of DUI, correct?”

“Correct. That’s the way it usually happens.”

“By the way, it is not illegal to drive without a shirt on, is it?”

“No.”

“Or wearing a Santa hat?”

Caldwell smiled. “Not that I know of.”

“So the only reason for the stop was for violation of the vehicle code, specifically the seat belt law.”

“Right.”

“Tell me, Officer Caldwell, how you could determine Mr. Richess wasn’t wearing a seat belt.”

“It was pretty easy,” he said. “The defendant is rather large, and without a shirt on, I could see there was no strap going
across his body.”

“No shoulder strap?”

“That’s right.”

“And that’s when you decided to drop behind Mr. Richess and stop him.”

“Yes.”

“Thank you, Officer Caldwell. You’ve been most helpful this morning.”

The officer frowned, as if confused. I looked over at Kimberly Pincus. Her face was impassive.

“Do you have another witness?” Judge Solomon asked.

“None, Your Honor,” said Pincus.

“Mr. Buchanan?”

“No witnesses, Your Honor. I’m ready to argue the motion.”

“Well that’s nice,” Judge Solomon said. “I like it when someone is actually ready.”

What I heard the judge saying was that Ms. Kimberly Pincus had not been ready on some previous occasion. The judge was rubbing
it in.

This was my moment.

K
IMBERLY
P
INCUS SAID
, “Your Honor, it is manifestly clear that Officer Caldwell observed a vehicle code violation. He therefore had probable cause
to effect a stop. No warrant required in this instance, of course. So all the evidence observed subsequent to the stop is
admissible. Maybe Mr. Buchanan will want to talk about settling now.”

“Excuse me, Your Honor,” I said. “But doesn’t Ms. Pincus know that I get to make an oral argument, too?”

“She was rather jumping the gun,” Judge Solomon said. “Isn’t that right, Ms. Pincus?”

The CDA said nothing. But I thought I saw steam rising. It was kind of cute.

“All right, Mr. Buchanan,” said the judge. “You have my attention. I’m curious to hear what you have on your plate. As I recall,
Ms. Pincus said she would be eating your lunch.”

“With all the trimmings,” I said. “We are a nation of laws, Your Honor, and as such we believe that the laws passed by legislatures
have meaning. The meaning is in the text itself. Where the text is clear and unambiguous, that is what we follow. If the legislature
sees a need to change the text, they will. But we don’t do that on the trial level.”

“Thank you for the civics lesson, Mr. Buchanan,” Judge Solomon said. “Is this going anywhere?”

“Good question,” Kimberly Pincus said.

“I’ll handle the argument, Ms. Pincus, thank you very much,” the judge said. “Mr. Buchanan?”

“I quote, Your Honor, from the vehicle code, the exact text of the seat belt law: ‘A person may not operate a motor vehicle
on a highway unless that person and all passengers sixteen years of age or over are properly restrained by a safety belt.’
I emphasize the last word, Your Honor.
Belt.”

Judge Solomon peered over her glasses. “Yes?”

“Nowhere in the statute is the term
belt
defined by the legislature, thus leaving it to common sense and common understanding. A belt is a strap placed across one’s
lap, keeping one’s rear end in contact with a seat.”

Kimberly Pincus, sharp little tack that she was, stood up. “Your Honor,” she said. “I see where this is going. This is crazy,
and—”

“Ms. Pincus,” the judge said, “please sit down and do not speak again unless you have a valid objection. I want to hear Mr.
Buchanan out. This is nothing if not creative.”

“Does Your Honor have a dictionary handy?” I said.

“Right here,” Judge Solomon said. She took a volume and opened it up. Turned the pages.

Each page seemed to be a stake to the heart of Kimberly Pincus.

The judge stopped, then read. “ ‘Belt. A flexible band, as of leather or cloth, worn around the waist to support clothing,
secure tools or weapons, or serve as decoration.’ ”

“Around the waist,” I said.

“Interesting,” Judge Solomon said.

“I object,” Kimberly Pincus said.

“Overruled,” said the judge.

“But you haven’t heard—”

“Overruled, Ms. Pincus. Continue, Mr. Buchanan.”

I wanted this to last forever. I flipped a few pages in the vehicle code and said, “I can well understand the frustration
of the prosecution, but allow me to turn to another section of the vehicle code, Section 27314.5(a)(1). Here the legislature
prescribes a warning for used-car dealers which reads as follows. ‘Warning. While use of all seat belts reduces the chance
of ejection, failure to install and use shoulder harnesses with lap belts can result in serious or fatal injuries.’ What this
shows, Your Honor, is that the legislature distinguishes between
belts
and shoulder
harnesses
. In other words, they knew exactly what they were doing when they wrote seat
belts.”

“Fascinating,” Judge Solomon said with a smile.

“Officer Caldwell said he saw no shoulder strap on my client, and that’s why he stopped him. But there was no probable cause
to stop Mr. Richess, because he could very well have been in compliance with the seat belt law by wearing a lap belt. In other
words, there was no crime committed in the officer’s presence. No crime, illegal stop. Everything Officer Caldwell observed
afterward was fruit of the poisonous tree.”

I love that phrase. It comes from an old Supreme Court case. It basically means if an illegal action by the cop leads to the
incriminating evidence, that evidence is tainted. And therefore cannot be considered in court.

“Well done, Mr. Buchanan,” Judge Solomon said.

“May I respond now?” Ms. Pincus said.

“You may.”

“This is ridiculous. The term
belt
obviously has several different meanings.”

“Do you have a dictionary, Ms. Pincus?”

“No.”

“Then you are making a claim without a citation.”

Seam. Bursting. “Your Honor, please! At the very least, the term is ambiguous.”

“If I may?” I said.

“Yes, Mr. Buchanan?” the judge said.

“I have already shown that the legislature was very careful in choosing its terms. But even if we were to concede Ms. Pincus’s
point, that the term is ambiguous, the Keeler case controls. It held that when a statute is susceptible to two reasonable
constructions, it
shall be
construed favorably to the
defendant.”

You could have cut the silence with Kimberly Pincus’s tongue. Ms. Pincus herself was speechless. She shook her head disbelievingly,
like a teenager who’s just been told she can’t drive the car tonight.

“Give me just a moment,” Judge Solomon said. She took off her glasses and scratched her chin with one of the stems.