“I would not have objected,” Whitten answered.
I hoped the judge was aware that Whitten’s answers were largely bogus and part of the dance detectives engaged in every day in every police station. They walked a constitutional tightrope, trying to push things as far as they could before having to enlighten the hapless saps who sat across the table from them. I had to make a case that this was a custodial interrogation and that under these circumstances Andre La Cosse did not feel that he was free to leave. If the judge was convinced, then she would hold that La Cosse was indeed under arrest when he entered that interrogation room and should have been Mirandized. She could then throw the entire video recording out, crippling the DA’s case.
I pointed up to the screen again.
“Let’s talk about what you’re wearing there, Detective.”
I took Whitten through a full description for the record of the shoulder holster and Glock he was wearing, and then moved down to his belt, eliciting descriptions of the handcuffs, extra gun clip, badge, and pepper-spray canister that were attached to it.
“Your displaying of all of these weapons to Mr. La Cosse was for what purpose?”
Whitten shook his head like he was annoyed with me.
“No purpose. It was warm in there and I took off my jacket. I wasn’t displaying anything.”
“So you are telling the court that showing my client your gun and badge and the extra bullets and the pepper spray were not a means of intimidating Mr. La Cosse?”
“That’s exactly what I’m telling the court.”
“How about at this point?”
I moved the video forward another minute to the point that Whitten pulled the chair out from the table and put one foot up on it so he could really loom over the small table and La Cosse, who was shorter and more slightly built.
“I was not intimidating him,” Whitten said. “I was having a conversation with him.”
I checked the notes on my legal pad and made sure I had covered everything I wanted to get on the record. I didn’t think Leggoe would rule my way on this one but I thought I had a shot on appeal. Meantime, I had gotten in another round with Whitten on the witness stand. It better prepared me for trial, when I would really need to go at him.
Before ending the cross-examination I leaned over and conferred with La Cosse as a general courtesy.
“Anything I missed?” I whispered.
“I don’t think so,” La Cosse whispered back. “I think the judge knows what he was doing.”
“Let’s hope so.”
I straightened up in my seat and looked at the judge.
“I have nothing further, Your Honor.”
By prior agreement, Forsythe and I were to submit written arguments on the motion following the witness testimony. Pretty much knowing from the prelim how Whitten would testify, my document was already finished. I submitted it to Leggoe and gave copies to the court clerk and Forsythe. The prosecutor said he would have his response by the following afternoon, and Leggoe said she planned to rule promptly and well before the start of the trial. Her mention of her ruling not interrupting the trial schedule was a strong indication that my motion was going to be a loser. With its rulings in recent years, the U.S. Supreme Court had made new law when it came to Miranda cases, giving the police wider leeway on when and where suspects must be informed of their constitutional rights. I suspected that Judge Leggoe would go along to get along.
The judge adjourned the hearing and the two court deputies came to the defense table to take La Cosse back to the lockup. I asked for the chance to confer with my client for a few minutes, but they told me I would have to do it in the courtroom’s holding cell. I nodded to Andre and told him I’d be back to see him shortly.
The deputies took him away and I stood up and started repacking my briefcase, gathering the files and notebooks I had spread out on the table before the hearing. Forsythe came over to sympathize. He seemed like a decent guy and up till now had not—as far as I knew—played games with discovery or anything else.
“Must be hard,” he said.
“What’s that?” I responded.
“Just banging away at these things, knowing the success rate is what, one in fifty?”
“Maybe one in a hundred. But when you hit that one? Man, that’s a sweet day.”
Forsythe nodded. I knew he wanted to do more than commiserate on the defense attorney’s lot in life.
“So,” he finally said. “Any chance we might end this before the trial?”
He was talking about a disposition. He had sent up a balloon back in January and then another in February. I didn’t respond to the first one—which was an offer to accept a second-degree conviction, meaning La Cosse would be out in fifteen years. My ignoring the offer brought an improvement when Forsythe came around again in February. This time the DA was willing to call it a heat-of-passion case and let La Cosse plead to manslaughter. But La Cosse would still do at least ten years in the pen. As was my duty, I took the deal to him, and he turned it down flat. Ten years might as well be a hundred if you are doing time for a crime you didn’t commit, he said. He had a passion in his voice when he said it. It tipped me toward his corner, toward thoughts that maybe he was indeed innocent.