Russell Atkinson's Blog, page 102

“Violent” crime

Recently KQED Newsroom aired an interesting show about the effect Prop. 47 has had on crime in California. Proposition 47 was a measure to redefine some nonviolent crimes as misdemeanors, resulting in the resentencing and earlier release of many of those prisoners. I try to stay away from political issues in this blog, but as a retired FBI agent and attorney, I have knowledge and experience in this area, as well as strong feelings, so I will get on my soapbox.

Prop. 47 was a bad idea and I opposed it. Now that the early statistics are out, I am even more strongly against it. It has increased crime of all kinds. I won’t bother to go into the statistics. You can follow the above link to the show to see the numbers and hear people on both sides put their spin on it, but rates are up. What I want to focus on in this post is the misconception that nonviolent crimes are somehow less worthy of incarceration than violent crimes. In my experience, “nonviolent” offenders are at least as dangerous as “violent” ones. I put the words in quotes because, as I’ll explain, they are highly misleading when used in the context of sentencing.

Let’s start by identifying what qualifies as a violent crime. People probably think of murder as number one, the worst. Child molesters perhaps are as bad. Domestic abuse, robbery, aggravated assault all qualify. One controversial one is burglary. I’ll get to that later. There are more, but let’s agree that these are all bad crimes deserving jail. Nonviolent crimes include drug offenses, drunk driving, white collar crimes like embezzlement or fraud, corruption, and so on. You probably think those things are bad, too, but those folks don’t pose as much risk to you as the first group. You would be wrong. You are much more likely to be victimized by the second group, and have a more serious deleterious effect from them, too.

Consider these “violent” offenders, all real cases in my personal experience. A drunk walks into a bank and passes a note to a teller saying to give him all her money. He doesn’t have or pretend to have a weapon, but one hand is below the level of the counter where the teller can’t see it. The amused teller gives him $1200 in cash (bait money) and he walks out of the bank; his photo is recorded in multiple places around the bank. He is caught within hours, and the money is recovered. (If you’ve seen the Woody Allen movie Take the Money and Run, it’s not far from that, and this is a pretty typical bank robbery, although some can be violent). The robber goes to jail for a long stretch for robbery because the prosecutor argued that he put the teller in fear.

Next case: a young (age 22) male high school teacher, in his first job out of college, is pursued by several female students who think he’s “hot” or “cute.” He stupidly begins to date one of them secretly, a seventeen-year-old who is too shapely and aggressive to resist and who is also well-experienced sexually. They have sex. They break up. Another girl makes a play for him and the first girl out of jealousy complains that he seduced her. He is convicted of being a child molester. He must register as a sex offender and never teach again. He may not even be able to find a place to live since child molesters have severe restrictions on that.

A mechanic stays sober and works hard during the week, providing for his family. On the weekends he gets drunk and beats his wife. She sometimes calls the cops, but usually it is neighbors who do. She refuses to testify against him, but he gets convicted anyway based on eyewitness reports. While he’s in prison she takes up with some other guy who beats her worse, and her kids, and takes what little money she has. When her husband gets out she goes back to him. This happens multiple times. He’s a model prisoner and has never hurt anyone besides his wife.

Let me make clear that all these criminals did bad things. I highly disapprove of them and have no sympathy for any of them. I’d like to ship them all off to Australia, but the English ruined that option for the rest of us. But the question is one of triage. If we have to let someone out of prison due to overcrowding, do any of these people represent a danger to the general public? Almost none, yet they would not be eligible for early release.

Now for more real-life cases of nonviolent criminals. One case I had was a guy who dealt pot and fenced stolen goods. When people were slow to pay, he would send an enforcer around to rough them up or threaten to hurt their family. He admitted to me he was addicted to pot. He drove stoned to and from his regular job every day. His regular job was installing and maintaining avionic systems in aircraft. He plead guilty to possession of stolen property. A drunk driver was caught driving drunk many times. The first four or five times he got it tossed or reduced to reckless driving or other offenses. He kept his license each time. Then he finally got convicted of drunk driving, but did only minimal time in jail on weekends since he had a job. This happened five times. He went to substance abuse programs or counseling or rehab after every one of those. He kept his license, with restrictions only to drive to and from work. He violated the conditions and was convicted again. His license was revoked. When he got out he continued to drive drunk and killed three pedestrians in a crosswalk.

Three pals operated a real estate “investment” that was actually a Ponzi (pyramid) scheme. The typical victim: a well off 80-year-old man whose family told him it was too good to be true. Unknown to them, he sold all the stocks and other assets and borrowed heavily, putting it all into the scheme anyway. He ended up losing millions and going into bankruptcy. His wife divorced him and went on welfare. His children had to use up the college funds of their kids to pay off the mortgage so their mother would still have the family home. The man lost all his friends because he had persuaded them to put money into the scam. He became a broken man and his family embittered and impoverished. Multiply this by hundreds of victims. The three pals who started the scheme had a life history of schemes and theft, from shoplifting to stealing supplies and equipment from their employers to sell on craigslist to pump-and-sell schemes with penny stocks. Although caught only a few times, they never did any serious time. Even for this Ponzi scheme involving hundreds of millions of dollars and hundreds of victims, they were sentenced to only four years, less than the “violent” bank robber above. “Nonviolent” offenders get much shorter sentences to start with; they’re already getting early release. We shouldn’t be making it even earlier.

These are real cases, not fanciful ones. Which of these criminals poses the most danger to you or your family if let out of prison? I’m certainly not characterizing all, or most, violent criminals as harmless, nor most nonviolent criminals as dangerous. I’m only pointing out that by putting emphasis on whether the crime is violent or not misses the boat. In my experience, more lives are ruined by the nonviolent offenders. The reality is that the two highest predictors for someone revictimizing a member of the general public (i.e. you or your loved one) is addiction (drugs or alcohol) and thievery in any form. Thieves and addicts almost never stop. That’s how they make a living. They may devise more sophisticated ways as they age, but once a thief, always a thief. That’s why burglars are rightfully classified as violent in my opinion. Just because they haven’t hurt or threatened anyone with violence, they enter homes or cars to steal and the potential for a deadly confrontation is always there. Many carry weapons and many are stoned at the time. Just because they are caught later with the goods and only convicted of larceny or possession of stolen weapons, or maybe even burglary, doesn’t mean that they wouldn’t have attacked or killed the homeowner or family dog if circumstances had been slightly different.

Prop. 47 is a failure. If reforms are proposed to fix it, vote for them. If you’re in another state considering laws similar to Prop. 47, vote no, or tell your legislator to vote no.

GUT SHOT – Episode 27

Gut Shot – Episode 27

© Russell Atkinson 2015

You don’t have to be naked to be sexy. Nicole Kidman

Chapter 14

The courtroom was filling quickly for the hearing. I recognized two or three of the television reporters in the gallery. I managed to find one of the last empty seats and settled in. The man next to me took a quick look my way and greeted me by name. I was nonplussed for a few seconds, but he introduced himself quickly. It was Bob Battiato, the crime reporter for the San Jose Mercury News, the same reporter who had made my life miserable three years earlier when I was a suspect in a string of homicide cases. I’d spoken to him on the phone, but I’d never met him in person. He knew me from the pictures that had appeared in the paper and television at the time, some of them above his own articles.

He asked me why I was there. I told him I knew the defendant and was interested in the case. He asked if I was investigating the case. I laughed that off as a ridiculous idea but I could tell he wasn’t buying it. He didn’t press me, though, and soon he had no chance since the magistrate came out on the bench. We all stood and were told to sit again, then admonished to remain quiet and orderly. The magistrate knew there was likely to be a hubbub if Morrissey announced that the government was going to seek the death penalty.

The magistrate took several other cases first. I’m never sure what criteria judges use for deciding the order, but then I’ve never been a judge. When he finally came to Woody’s case, he would normally have let Bert go first on the issue of bail, but since he was well aware now that there was a new indictment, which would affect the bail question, he asked Sheila Morrissey to proceed. She announced the filing of the indictment for murder of a federal officer in the first degree. There was no lesser charge. The courtroom hushed collectively waiting for the other shoe to drop – would it be a death penalty case? She didn’t say and the judge didn’t ask. Instead he turned to Bert and asked if the defendant waived a reading of the indictment. As always, the defense counsel said yes. He didn’t want the details of the crime recited in all their gory details for the benefit of the media. He’d read the indictment and knew what it said. Of course, so had the reporters.

The judge then went through the litany of questions to the defendant. Had he been advised by his counsel of the substance of the indictment? Did he understand that he was being charged with murder? Did he understand his right to a jury trial, the right to call witnesses on his behalf, and on and on. Woody dutifully nodded and mumbled yes to all the questions. I could tell from his demeanor and answers he was intimidated and confused. He turned to Bert more than once for a whispered explanation of some term.

It would seem surprising to members of the public fed on TV crime show fare to learn that Woody, or any other experienced FBI agent, was totally unfamiliar with what goes on in federal criminal court. Most AUSAs didn’t like agents to attend. They saw that as unnecessary looking over their shoulder, much as the agents wouldn’t like the attorney riding around with them while they did their interviews and other investigation. The streets belong to the agents; the courts to the prosecutors.

I knew Woody’s FBI history well enough to know that his primary assignments were, in approximate chronological order, applicant backgrounds, white collar cases (a SWAT team on the side), a surveillance squad, and now fugitives and bank robberies. Applicants, of course, do not appear in court. White collar cases rarely result in arrests; defendants there self-surrender to the U.S. Marshals at a time agreed upon by counsel. Investigating agents in those case may testify in grand jury, but seldom have any reason to go to court hearings. None of Woody’s white collar cases went to trial and only one that I remember even was prosecuted, resulting in a plea bargain. Surveillance agents do not make arrests or investigate cases other than writing up reports. Fugitive work doesn’t result in going to court. You just catch ’em and take ’em to jail. Even bank robbers rarely get prosecuted in federal court in this area. In Bismarck or Peoria, sure, but around here a bank robbery ranks up there with littering and graffiti. It’s handled by local agencies except in the most egregious cases, such as a shooting or pistol-whipping. So I wouldn’t have been surprised if this was the first arraignment Woody had ever attended.

When the arraignment was done the magistrate said he would entertain argument on the issue of bail. Sheila again requested that no bail be granted. Bert responded by requesting reasonable bail, pointing out his long FBI tenure and lack of criminal history, the fact that the FBI now had his passport, and promising that Woody’s FBI supervisor had agreed that he could live in her house until the trial and would take responsibility for him. He repeated several times that the shooting was an accident and that Woody had no motive to commit murder.

This was the first I’d learned that Gina and Matt Nguyen had agreed to take Woody in. It must have happened late last night. That was a good development and one that I thought might just win the day. My optimism didn’t last long. Sheila Morrissey held up a large manila envelope and replied that she had evidence that proved opposing counsel wrong. She offered to hand it up to the magistrate. At the same time she handed a similar envelope to Bert. The judge told her to step back and describe the document before he would consider looking at it.

“Very well, your honor,” she replied coolly, and I realized that the judge’s reaction was the response she had been hoping for. “In this envelope is a color print of a photo the defendant’s girlfriend sent to the victim only three days before the murder. Because of the … very personal … nature of the photo,” and here she looked back at the reporters in the gallery before turning her gaze back to the bench, “I have kept it in the envelope out of respect for the young lady’s privacy. I’m sure it’s not a photo she would wish to be public. It was found on the victim’s phone along with a text message asking the victim to send her a similar photograph. I think the court would find it abundantly clear what the defendant’s motive was. This was no accident. The defendant sneaked his gun into the firearms. He called the victim obscene names and then shot him at point blank range. Defendant has every reason to flee. The evidence against him is overwhelming.”

I cursed Connie Jefferson silently. She’d sent Jermaine her nude photo and didn’t tell me. How could she not realize it was going to come out? Didn’t she care what it would look like to Woody? I began to wonder if Woody knew about it, but my gut instinct told me he did, and he had concealed it from Bert and me.

The magistrate told Morrissey that he didn’t need to see the photograph. He turned to Bert for a response, but all Bert could do was sputter that this was something that had been dropped on him without warning and was a cynical, sensationalistic attempt to prejudice the jury pool. I noticed that Woody had the envelope in his hand and was pulling the photo out far enough to get a peek. The magistrate then turned back to Morrissey and asked the big question: would the government be seeking the death penalty? This was certainly relevant to the question of bail. She took her time to build up suspense in the gallery then finally answered no. There was a small rush of bodies towards the door, but most of the reporters stayed put. Apparently some seemed interested only in being first to report that the death penalty would not be sought, or maybe they wanted to start the quest for that nude photo. The rest wanted to hear whether bail would be granted.

The magistrate announced that bail would be denied and called the next case. It was over like that. A larger stampede then took place. I waited for the rush to die down before standing. The Mercury reporter was still sitting next to me, and I sensed that he was waiting to see what I did. He was a newspaper reporter, not TV or radio, and his deadline would not come up for several hours, so a few minutes wouldn’t matter to him. I waited for Bert to gather up his things and followed him out of the courtroom.

I caught up to Bert and followed him to the elevator. When we got there, Sheila was waiting. She spotted me and gave me a glare. She must have remembered me from that case in San Jose and considered me a traitor to be working for the dark side. I was conflicted enough to sympathize with her. We said nothing to each other. Bert took me by the arm and led me aside, waiting for the next elevator. Once Sheila was gone, he told me he wanted to stop by the marshal’s office to see if we could get a word with Woody before he got carted back to prison.

We got there and it soon became clear that this case was being treated as special. This was more in deference to Woody’s position as an FBI agent, and, presumably, the magistrate’s favorable view towards the agency, than it was to Bert’s persuasion. The chief marshal agreed to the request and told us to wait. After a few minutes, we were led back to some holding cells. Woody was the only prisoner there. The others were either still in court or stuck elsewhere. We were let in.

Bert waved the envelope in Woody’s face and asked if he’d known that Connie had sent the photo to Jermaine. Woody hotly denied it. Bert didn’t buy it. He asked why Woody hadn’t shown more reaction when he saw it and Woody claimed it was because Bert had told him to stay calm and not react in court.

Woody’s demeanor was too stiff, too practiced. I could tell he’d anticipated the question and rehearsed the answer. I interrupted.

“Woody, look me in the eye and repeat what you just said. First, though, let me warn you that the phone and social media files for both you and Woody have been subpoenaed by the prosecution. They will find and review every text, every email, every Instagram or Facebook posting for you, Jermaine, Connie and everyone else with a connection to this case. We will see those in discovery, including everything you’ve deleted. If you lie to me about this, I’m outta here. I’ve got to know once and for all whether I can trust you.”

I saw doubt creep into Woody’s eyes. “They can do that? Get deleted emails?”

“They can.”

He shook his head and defeat suffused his face. He looked like a bronco that has finally been broken by a cowpuncher.

“It’s not what it looks like,” he began, and I knew it was exactly what it looked like. “Connie sent him that photo, but he forwarded it to me with his own message saying my girl was playing games with me. He respected me as a brother, you know, and knew that wasn’t right, what she did. He told me he wasn’t going to cut in on my relationship, you know? I asked him to delete the picture and our emails and he promised me he would. I deleted them all and I thought he had, too. He even told me he had at firearms that day, before class. That’s why I didn’t tell you about it before. I knew how it would look. But Jermaine was a good guy. I wasn’t angry. We were laughing about how she was tryin’ to manipulate me and how it wasn’t working.”

I was disgusted with the answer. “Woody, we went over this already. Lying to me doesn’t make me believe you more. It has the exact opposite effect. Now I need it straight up. Your answer is attorney-client privileged so it can’t hurt you, but I need to know: did you intentionally shoot Jermaine?”

“How could you ask me that? You still think I did it?”

“Cut the crap! Yes or no. Did you murder Jermaine?”

“No. Cliff, absolutely not. It was an accident just like I told you.”

Bert had listened to the exchange with intensity, but had not interrupted. I knew he wanted to know the truth just as I did. I also knew he didn’t trust Woody’s answer any more than I did.

“I have to ask you something,” he said to Woody. “I want to talk to the AUSA about a disposition. I need to know whether I can offer to plead you nolo to second degree. I think I can get you minimum security, eight years. I know it sounds like a long time, but …”

“A plea deal?! No way. You still think I’m guilty? How many times do I have to say it. I’m innocent. 100% innocent. Someone set me up. You hear? No deal.”

“I have to look at all the options, Woody. Just because we believe you’re innocent doesn’t mean a jury will. I’ve managed to get the death penalty off the table. Now let’s get a life sentence knocked down. If you get convicted at trial, you could end up in a maximum security prison for life. Ex-law enforcement convicts don’t do well in those places.”

“I don’t believe this. What part of ‘no deal’ do you not understand?”

“The part where every few days we get a new surprise you didn’t tell us about, a surprise that makes you look guiltier and guiltier, a surprise that you lied about. Just think about it.”

The marshal came in and told us he had to move the prisoners now, so we left. Woody was calling “No deal” to us as we left the area. We went outside before talking any more. There were too many ears inside.

“Bert, I’m giving you notice now,” I declared. “As soon as I’ve done the week I promised, I’m off this case. I can’t work with someone who lies to me.”

“Cliff, be reasonable, or at least be compassionate. You’re the only one he trusts. You’re the only one I trust on this case.”

“It doesn’t sound like he trusts either one of us. Innocent people don’t hide the truth.”

“Of course they do. Every day. We all have secrets. Look, I need you. You’re the best investigator I know. Woody and the other agents you worked with know it, too. Remember when we worked that major case on the chip theft hijackings? It was going south until they brought you in as case agent to anchor it.”

“Calling me an anchor isn’t going to help. I hope you meant that as a track metaphor and not a sailing metaphor.”

“Quite the quipster, aren’t you. We still have the rest of the week. We’ll talk about it more later. Sheila will have to send me the grand jury transcripts now that he’s been indicted. Read those over and give me your take. Let me know if there’s anything there to conflict with what you learned. I need something to attack the witnesses. Here.” He handed me the envelope with the photo.

I grunted my assent and headed back to my car. I turned my phone back on and saw some messages. Maeva had some criminal records back on the two muggers who killed the dog. I had received a return call from Clarence DeWitt, the firearms unit chief at Quantico. Some of my paying clients were getting impatient for results.

I returned the client calls first, promising to get them preliminary results by tomorrow. Then I called DeWitt back. I got through fairly quickly. He was cordial at first, but when I explained that I was investigating the shooting, he became wary. I sensed that he was worried the defense would be trying to put the blame on him or his unit somehow.

I asked about the Two Fugitive Extraction Scenario and he gave only vague answers. That scenario had been used for years and no one had ever been injured, he assured me. I asked whether he had instructed Bobu and Mossberg recently in that scenario. He said they had been through a week-long course of instruction that may have included that particular exercise, but he only taught a few of the sessions and didn’t remember specifically whether that exercise was among the ones used. I asked if there were records and he gave me more vague answers. When I tried to pin him down, he finally said he was too busy to research it and any records would have to be obtained through subpoena or other proper process.

I could tell I was getting nowhere, but he wasn’t trying to end the conversation. It was obvious he wanted to know what had occurred. A killing at an FBI firearms exercise fell squarely in his ambit and any deficiency in his training protocols or judgment would be devastating to his career. Had he failed to spot a rogue instructor? Woody must have gone through a course at Quantico earlier in his career to be designated an instructor. Had DeWitt failed to emphasize safety in his training? He asked me what I had learned about the shooting. I was equally vague and hinted that I was trying to find out how the loaded gun had made its way into the scenario. He emphasized that they only use red handles at Quantico and that the agents who take the firearms instructor courses are always told how to ensure there are no loaded guns out in the field for such exercises, but wasn’t specific about how this was taught or what warnings were given.

After several minutes of cat-and-mouse games I decided I wasn’t going to get anything useful and didn’t want to make him an enemy, at least not yet. I wanted to keep him receptive in case I needed him later. I thanked him for his help and suggested that I thought I knew “what went wrong” in the exercise. This phrase caught his interest and he tried to get me to elaborate but I said I’d get back to him if I was able to pin it down. It was a bluff, since I had no idea what went wrong, but I wanted to keep him on the hook.

Before leaving the parking lot I opened the envelope and fingered the edge of the photo. I wasn’t sure why Bert had given it to me. Did he want me to confront Jefferson with it? I told myself that I needed to look at it to understand how it would affect the case, but there was a nagging feeling that I was rationalizing, just trying to justify looking at a dirty picture. I enjoy feminine pulchritude as much as the next man, the next heterosexual man, anyway, but I was so furious at Jefferson that I had a hard time thinking of her as beautiful. In the end, my curiosity won out. I pulled out the print.

The shot must have been made from a tripod or other stable platform across the room. This was no selfie at arm’s length. Connie stood arms akimbo at a three-quarters angle to the camera, smiling in a sultry Lauren Bacall sort of way. Her glistening black hair fell loose to her collarbones, directing the eye to her small, perfectly-formed breasts. Her wasp waist gave more curves to her silhouette than I would have thought, considering her slimness.

Although she wore no clothes, she stood before a wooden rocking chair. It appeared to be cherry wood and had a heart-shaped hole cut in the center of the top back panel. The intended suggestion was clear. The hole was positioned directly above her private parts, but she stood at just enough of an angle so that the camera saw only the suggestion of what lay below. The chair hid the rest. It was actually quite artistically done and I wondered if she had had a professional photographer take the shot. I was fascinated for a few moments at the sheer skill involved, but that soon turned to revulsion at the very professionalism of it. It was so … planned. An impetuous selfie with an iPhone I can understand, but what kind of woman goes to this much trouble to create such a shot? And then sends it to her boyfriend and the second-stringer she has on the hook? I shoved the picture back in its envelope and dropped it on the seat.

Back at the office I found that Bert had already sent me the transcripts of the grand jury testimony. It was amazing how fast discovery moved now with digital documents. When I was an agent it took many days, often weeks, for paper documents to be produced and exchanged by messenger.

I was more amazed when I opened the attachment and saw the transcripts. Bobu hadn’t testified. Neither had Watkins or Garcia. There was only a single witness: Theodore Fitzhugh III, the Special Agent in Charge. Instead of bringing in the eyewitnesses to the shooting, she had brought in the SAC, who had made the decision to arrest on the scene. This was clever. All his testimony was hearsay, that is, things he had been told by the other agents there. The rules of evidence don’t apply in grand jury, so that didn’t matter for their purposes, but it meant his testimony, most of it at least, would not be admissible at trial. Sheila Morrissey was using this ploy to prevent the defense from seeing the testimony of the eyewitnesses before trial, the ones who would be on the stand there. If they testified a bit differently on the stand at trial from the way Fitzhugh described it in the grand jury, they couldn’t be impeached with the prior testimony of someone else. If Bert tried, they could just say Fitzhugh must have misunderstood or misquoted them.

Although Bobu hadn’t testified, Fitzhugh had testified as to what Bobu had told him. He said that Bobu had been outside the barracks looking through the glassless window to the back bedroom and saw Braswell enter the room, approach the window, turn back, bend down to reach his ankle, and then return to the wall next to the doorway. Woody’s hand had been in shadow, but Bobu could tell he had a gun as he could see a glint of reflection from the barrel. He hadn’t realized it was a different gun from the service pistol Woody normally carried, and which had been unloaded and inspected prior to the exercise. Seconds later Watkins and Logan appeared in the doorway and Braswell had reached his right hand around the door frame. Bobu had seen a flash through the window and heard the shot. He went running around to the front. From that point on, the Bobu account was consistent with what Watkins and Woody had told me.

What struck me was that Bobu had told Fitzhugh that Woody had bent down to reach his ankle. I knew Bobu couldn’t have seen Woody reach for his ankle. Bobu had been crouched behind a barricade outside. The window sill was about waist high. Woody’s upper body would have been visible, but once he bent or crouched down, Bobu could not see what he was doing. Woody had said he reached into the SWAT bag, which would not have been visible to Bobu. Did Bobu think Woody had pulled the gun from his ankle holster? Perhaps he didn’t know that the ankle holster had been found in the SWAT bag. Maybe it was Fitzhugh who had made the assumption, not Bobu. Bobu may only have said he had seen Woody reach down near the floor and Fitzhugh had interpreted that as reaching to his ankle.

This got me to thinking. Did anyone in the FBI even know that Woody claimed he had pulled the gun from the bag? Woody had said it was an accident, but according to him and everyone else I’d talked to, he hadn’t said specifically that he’d pulled the revolver from the bag. Maybe they all assumed he’d carried the gun in on his person. Maybe they thought Woody meant he didn’t know his gun was loaded. The only agent who mentioned the bag was Watkins. Nobody else seemed to think it important enough to mention it in a 302.

Anagram on the News

RUNAWAY ARMY BLIMP TRAILS HAVOC INTO EAST PA. = TV TEAM MAPS BALLOON AIRSHIP AIRWAY TRUANCY

The Anagram Times

International fame … sort of

You long-suffering readers of this blog regularly have to put up with my anagrams on the news. Now that skill has been officially recognized and sanctioned by an international journal, The Anagram Times. There’s even a nice interview there with me. Thank you, Anu Garg, my editor and boss now, I suppose, for this distinction.

The Terra-Cotta Dog by Andrea Camilleri

The Terra-Cotta Dog by Andrea Camilleri

My rating: 3 of 5 stars

Inspector Montalbano is the detective extraordinaire in a town in Sicily, solving murders while managing not to get in the cross-hairs of the Mafia. He has the lustful heart and other body parts of a stereotypical Sicilian male but the brain and tenacity of Sherlock Holmes. His men are mostly obedient buffoons and provide comic relief. Montalbano himself is afraid of nothing except speaking in public and being promoted.

The details of the mystery are unimportant. The book is all about style and wit. This is a translation from Italian. It is mostly lighthearted, almost cute, in tone, but occasionally lapses into gratuitous vulgarity. I suspect that may be due to the translation. I don’t know Italian and perhaps some of those original words aren’t considered quite so offensive there.

I listened to the audiobook and the reader was very good

View all my reviews

GUT SHOT – Episode 26

Gut Shot – episode 26

© Russell Atkinson 2015

“I’ll fix this, Cliff,” he assured me. “I don’t want you worrying about it. You identified those two mopes and the OPD detective knew they were bad news. You had just come from a court hearing. Where’d you get the knife? You didn’t have a car. See what I mean? You were searched through a metal detector.”

“I stopped at your office. In theory I could have stashed a knife at your office and gone back to get it.”

Bert scoffed. “Right. You stashed a knife at my office and then retrieved it and walked straight to the edge of Chinatown to torture and kill some stranger’s dog, sacrificing a nine-hundred-dollar suit. And you did this why?”

“Alright, so take care of it already. But dollars to doughnuts I’m facing a civil suit from those two.”

“You have insurance. They’ll take care of you if it happens.”

“So what now? You want me to investigate, but I’m running out of good leads. So far everything’s pointing to Woody.”

“You gotta find me an alternative theory. Someone who entered Woody’s car and took his bag into the barracks. And I need means, motive, and opportunity. It sounds like anyone there had the opportunity during the video. No one was paying any attention to who went to use the crapper while it was playing. But I’m having a hard time coming up with means and motive. A confession from someone else would be nice.”

“Did you request the fingerprint exam on Woody’s car and the bag like you said?”

“Not yet. That’ll tip our hand as to our defense theory, but it looks like I’m going to have to. I’ll request that at the bail hearing tomorrow.”

“He’s not going to get bail, is he?”

“No chance. Cliff, tell me straight out. Does his story about the gun in the end pocket, loaded but without the holster, make sense to you? Do you think he’s telling the truth?”

“We know he lied. He lied about being jealous of Jermaine, for one. He told us he didn’t realize the bag and gun were his. That’s hard to believe, although it’s conceivable. Those bags all look alike. Different gun models feel different in the hand. I think I’d recognize the feel of my own five-shot, if I had one, but for a common model like that, of course any other revolver of the same model is going to feel and look the same. The gun in the pocket … well, it’s not the way I’d do it. The gun would normally be sitting somewhere at home or the office, on a dresser or in a drawer, in its regular holster, which in his case is an ankle holster. When he left for firearms the logical thing to do would be either to toss the gun still in the ankle holster together with the belt holster into the bag’s main compartment, since the end compartment is not big enough for both holsters, or else switch the gun into the other holster you know you’re going to use before you leave. The gun in the belt holster would then be in the end compartment, but that didn’t happen. It was the gun with no holster, almost as though he wanted the loaded gun quickly accessible without having to pull it out of a holster. The part about the ammo makes sense, though. You always load with fresh ammo when you leave, so there’s no reason to have loose ammunition in the bottom of your bag. If you want more for some reason, you can just take a box of new stuff when you leave.”

“So you think he’s guilty of premeditated murder?”

“Do you?”

“I have to unless you or he can come up with another explanation. I’m going to talk to Sheila about a disposition after the hearing. Maybe second degree, minimum security, eight years.”

“You really think Woody would consider that? Or Sheila? I can’t see it.”

“Maybe not, but I have to do something to keep him from a life sentence, even the death penalty.”

We’d come in separate cars. Bert told me he had to get back to his office to draft two motions for the hearing tomorrow, so I took off to grab a late lunch at one of the nearby spots.

Back at the office Maeva was still reviewing photos and video, but hadn’t found anything useful. I briefed her on what we learned from the interview, which made her happy. She appreciated being made a full part of the investigation. I knew she was bright and was hoping she would come up with some ideas. I was fresh out.

I placed a call to Clarence DeWitt, the firearms unit chief that Billy Clubb had told me about, the one who would have run the in-service training for Bobu and Mossberg. It went to voicemail. I left a vague message, identifying myself only as a retired agent who needed some firearms advice. I checked the website forum again to see if Huntress’s identity had elicited any responses from “Bubo.” It hadn’t although there were two responses from other police instructors. That gave me an idea. I used one of my other fake identities to join that forum and respond. This second sock puppet replied that he had heard a good exercise to use was the FBI’s Two Fugitive Extraction Scenario. I then logged on again as Huntress and asked if anyone knew where I could get a description of that exercise, or preferably a written FBI protocol.

I called Ellen to see how she was doing. She was in tears again. Tommy had been crying all day. She’d run out of milk and couldn’t keep him happy no matter what she tried. I told her I was coming home and could take him for a while. I told Maeva where I was going and got home as fast as I could.

As Ellen had said, Tommy was crying his little head off. He was almost screaming. I wondered whether he was in pain. I took him from a grateful wife and tried burping him. I managed to get a single burp from him, which quieted him for a few seconds, but then he started right up again. Ellen told me she was going to take a nap.

I threw the Snugli into the car and loaded Tommy into the car seat. I planned to drive to the park and walk around with him in the Snugli, but as I was waiting at a stoplight, I realized I had not seen any sign of dinner preparations at home. I knew Ellen needed a break, but going out to a restaurant was out of the questions with a screaming baby. I decided to drop into the grocery store and pick up something ready-made. They had some good hearty soups in plastic cartons. I parked in the lot and loaded Tommy, still crying, into the Snugli. Almost as soon as I walked into the store I started to get admiring glances from some of the women there. A man who takes the baby and does the shopping! Will wonders never cease!

As I was looking over the soup collection, a young Indian mother pushing a baby in the cart came over to me. A girl about three walked beside her.

“A boy or a girl?” she asked.

“A boy, Tommy.”

“Your grandson?”

Ooh, that hurt. “My son,” I replied, trying not to sound offended. “He’s my first,” I added. I suppose my vanity made me imply that I had a great future ahead as a prolific stud, the progenitor of many more to come.

“I’m sorry. Can I get a better look?”

I nodded. She reached tentatively for the flap on the Snugli so she could see his face. Tommy was still crying, but it was more of a constant fussing than the screaming he’d been doing earlier. When she pulled the flap back she proclaimed him to be “the cutest thing.”

“I’m sorry about all the crying,” I replied, not sure how to continue the conversation.

“How old is he?”

“He’ll be three months next week.”

“May I touch him?”

She seemed kindly enough so I gave her the okay. She put her fingers on his chin and gently opened his mouth. After peeking inside and touching his gums she remarked, “It’s awfully early but I think he’s starting to teethe.”

“Already?” This hadn’t occurred to me.

“Your pediatrician can give you stuff to put on the gums to reduce the pain. Wrap a clean cloth around your finger and let him chew on that. That may stop the crying. Is your wife breast-feeding?”

“Yes.”

“She’ll have some painful moments soon. Just be patient. You’ll get through this stage. Just enjoy it while you can. It’s all part of the experience.”

“Yeah, okay. That’s good advice.”

The woman went on her way. I bought a couple of the soups and picked up a boneless chicken breast. Sometimes Ellen would microwave one and chop it up to beef up the soup, as it were.

We went on to the park, but I didn’t get out to walk him because he fell asleep in the car. I picked a route with minimal stops so I could keep the rhythm of the road going for him as long as possible. I didn’t want to keep the unrefrigerated groceries in the car any longer than necessary, so after twenty minutes or so I pulled into our garage. Tommy started crying again almost immediately. After I put away the food I tried the trick of letting him chew on my finger. I learned quickly that one layer of cloth isn’t enough. These little suckers can really bite, even without teeth. I understood fully what the woman meant by her comment about Ellen’s future.

I babysat the rest of the afternoon. When it was time for the early news, Ellen was still asleep. I turned on the television. The lead story turned out to be Woody again. The same woman reporter as before was in front of the Oakland federal courthouse. The United States Attorney’s Office had filed an indictment against Woody for the murder of a federal officer. This was unsurprising by itself, but I had not expected it to be this soon. Sheila Morrissey herself had said at the last hearing that she would not have an indictment by the time of the bail hearing. Now it seemed, she did. A legal analyst came on speculating that the government would be seeking the death penalty.

I knew from experience that Morrissey must have worked fast. Usually on complex cases, like the white collar ones I used to do, it took weeks of presentations to a grand jury before an indictment was handed down. The short time frame here meant she must have brought all her witnesses in one session and spent very little time with each, presenting just the bare bones of the case. Considering the nature of the evidence and the presence of eyewitnesses, this wasn’t so surprising. I guessed that she had Watkins and Garcia testify, had some medical or autopsy reports introduced, and maybe one of the ERT people to testify that the gun and bag were identified as Woody’s. I hoped she had put Bobu on the stand since he was dodging me. I knew Bert would get the transcripts of the grand jury testimony and maybe there would be something more in it than what was in his 302.

So that meant the bail hearing tomorrow would also be an arraignment on the indictment. I needed to be there. That meant getting up early and driving through rush hour traffic.

Ellen had come out of the bedroom during the news story. She could see I was engrossed so she had waited for it to be over before saying anything. She was in a better mood after her nap, and once the news story was over she gave me a kiss on the cheek and thanked me for taking Tommy. When she realized I’d taken care of dinner, too, she returned for a bigger kiss, on the lips this time, and a fierce hug.

I mentioned to her what the Indian woman had said. Ellen told me it was way too early for teething, but she said she’d try anything at this point.

After dinner I cleaned up the dishes, earning a few more brownie points, but really, it wasn’t much work and was easier than trying to keep Tommy happy. When she quieted him down with another feeding, I finally had a chance to log on and check email again.

There was one from Bert with the names and DOBs of the two men I had identified from the mug books. He’d gotten that information from the Oakland P.D. detective. Mug books don’t contain the names, so I hadn’t been able to get that when I identified them. Now I had something to go on. I forwarded that one to Maeva and asked her to do criminal checks and anything else she could think of on them.

I checked Huntress’s forum post, but there was no activity there. I checked the Facebook pages and Twitter accounts of Watkins and Garcia, too, but there was nothing recent. Watkins had never posted much of anything, but Garcia had been a frequent user of both until the date of the shooting. He’d probably been advised to stop using social media. I had previously found and downloaded a few pictures of him at tailgate parties or similar events, usually with a beer in his hand. Bert might be able to embarrass him a bit with those if he testified, implying that he might be called out on duty drunk, but I didn’t think that would amount to much. I checked all my other trap lines but nothing good came up. I told Ellen I had to get to Oakland early and wanted to get up in time to beat the morning rush, so we hit the sack early. For the first time, Ellen took my advice and just let Tommy cry. I assured her that he would survive until the 3:00 AM feeding. And he did.

Movies and Anagrams

Regular readers of this blog will know that I enjoy analyzing movies and making anagrams. Here’s a way to combine the two interests. The left half of the equation is an anagram of the right half.

True Grit + Frank Millers Sin City A Dame + Precious Based on the Novel Push by Sapphire + Pirates of the Caribbean Dead Mans Chest + Avatar + Men in Black II + The Hunger Games + Juno + The Illusionist

=

Captain Phillips + The Dark Knight Rises + Marvels The Avengers + Inglourious Basterds + The Curious Case of Benjamin Button + American Beauty + Happy Feet + Iron Man + Amelie + Crash + The Blind Side

Anagram on the News

The Anagram Times

SWEDISH KNIFE-WIELDER SLAUGHTERED TWO = SWINISH ROGUE WAWLED, HEFTED STEEL DIRK

GUT SHOT – Episode 25

Gut Shot – Episode 25

© Russell Atkinson 2015

I like to have guns around. I don’t like to carry them. Maya Angelou

Chapter 13

The next morning I drove in to work with the news on the radio, but Woody’s case had dropped off the media’s radar for now. I knew it would come back on when the bail hearing came up later in the week. I took some more time looking over the documents Bert had sent me and spotted something I hadn’t noticed yesterday. It was two pages from George Mossberg’s personnel file. This was unexpected. Personnel files are not normally provided on testifying agents. However, if there is something possibly relevant to the defense, such as something that casts doubt on the truthfulness of an agent, or a propensity for violence in a shooting case, for example, that’s what’s known as Brady material. It must be disclosed to the defense under the rule of Brady v. Maryland, a Supreme Court case.

Reading through it, I saw why it was disclosed, but didn’t think it would help much. Mossberg had a letter of censure in his file for an incident back at Quantico several years earlier. He’d been training as a firearms instructor back then at Quantico and apparently “defaced government property.” That wasn’t the Brady infraction though. The censure had been for his “failure to be candid during the investigation of the incident.” This was the equivalent to shooting a rubber band at the kid in front of you in sixth grade and then lying to the teacher and being sent to the principal. Hardly a hanging offense and not likely to cause him to be disbelieved by a jury. Maybe Bert could use it if he testified, though. Of course, he was a marginal witness anyway since he was over instructing the front office people when the incident occurred. My guess was that if Sheila Morrissey had planned to call him as a witness, she wouldn’t have disclosed this. She would have interpreted it as irrelevant and not subject to Brady. She was probably only disclosing it now in order to look like she was bending over backward to protect the defendant’s rights.

I was curious about what the defacing of government property was all about, though. I knew that the Unit Chief over firearms back then was William Clubb. His unavoidable nickname, of course, was Billy Clubb; he was a classmate of mine at Quantico during New Agent Training. He was both the oldest trainee at thirty-five, and the best shot. In fact he held several records for shooting for all FBI history. I had heard he had become Unit Chief over the Firearms Unit, his lifelong goal, but I hadn’t talked to him since we both left training school. I knew he was retired now since he would have reached mandatory retirement age several years ago. I looked him up in the directory of former agents and found an address and telephone for him in Florida. I called him.

I was lucky to get him on the first try. After fifteen minutes of catching up on old times and what had become of our various classmates, I told him I was working on a case involving FBI personnel. I asked him if he remembered the incident with George Mossberg. At first he said no, but when I read him the text of the letter of censure, it came back to him.

“Oh yeah, that one,” he drawled in his southern accent. “Mossberg. Piece a work, that one.” He began chuckling.

“I’m all ears, Billy. You’ve got me curious now.”

“You workin’ on that shootin’ in San Francisco? The one on the range?”

I knew he was referring to the San Francisco Division, not the city. “That’s right.”

“What’s Mossberg got to do with it? I heard it was a coupla black guys.”

“Probably nothing. He was there, though, and there’s this letter in his file so I thought I should find out if it means anything.” I could tell he was reluctant to say anything bad about another agent, particularly a fellow firearms instructor.

“Hell, Cliff, it was just a prank. It didn’t mean nuthin’. He just pasted a photo of a presidential candidate on one of the targets on the range. He was there training field agents to become firearms instructors. It was all fellow instructors. Not like it was National Academy or anything. Just a joke among friends. When the instructors came out, someone without a sense of humor must have taken offense and reported it.”

“Which candidate?”

“What difference does that make? It was inappropriate and in bad taste no matter who it was. I had one of the trainees remove it immediately and told them all that was no jokin’ matter.”

I smelled red meat. “It was Obama, wasn’t it Billy? Come on, it’s all in some file somewhere and it’ll come out.”

He sighed, knowing where this was going. “Of course it was Obama. These are a bunch of card-carryin’ NRA members. If it’d been McCain they’d all have been demanding an investigation. I thought that was the end of it, but before the end of the day someone from OPR was on scene and questioned ever’body about whether they done it. Everyone denied it. But she’d already pulled the picture from the trash. She threatened to have it processed for prints and whoever it was would be fired and prosecuted for threatenin’ a presidential candidate if they didn’t confess. Mossberg came forward then.”

“Did they look at it as a civil rights case? A racist thing.”

“I’m sure Mossberg didn’t mean it that way, but maybe the OPR woman looked at it that way. He’s lucky he kept his job.”

“So what happened after the letter of censure?”

“He was a GS-14 at Quantico. They busted him down to a thirteen and sent him to Frisco.”

I wasn’t sure whether Clubb knew that most residents of the San Francisco area consider the term Frisco disrespectful, but I wouldn’t have put it past him to be yanking my chain that way. It didn’t matter to me since I didn’t like San Francisco any more than he did. It’s a filthy, politically broken city with great scenery.

“What about you? Did you come through okay?”

“Not hardly. I got a letter, too. I ‘failed to report it immediately, thereby exercisin’ poor judgment.’ It held up my next raise.”

“Harsh, really harsh,” I said sympathetically, although it was hard to feel much sympathy. I wondered whether he would have taken more aggressive action if it had been McCain’s picture. In fact, I doubted that it would have happened if the Democratic candidate had been white.

“They gave me an incentive award six months later to make up for it, but they had to look like they were punishin’ the manager who was there.”

“Hey, while I have you, can you tell me something about the arrest scenarios they use there now? In particular something called the Two Fugitive Extraction Exercise.”

“I don’t know that name. We ran all kinds of different scenarios. Like you and I had to do in Hogan’s Alley in New Agents Training. Every year it’s a little different, but there were ones we did with two subjects in a building to be arrested.”

“Do you know exactly what was taught at the scenario that Bobu and Mossberg went through a couple of months ago by any chance?”

“No idea. I’ve been retired for more’n five years. Talk to Clarence DeWitt. He’s the Unit Chief now.”

I got DeWitt’s contact info from Billy and we said our goodbyes. This stuff on Mossberg was something Bert could use, although I was reluctant to let him have it. I didn’t think Mossberg was a racist. I’d never heard or seen any sign of it. His immediate supervisor, the senior tech agent, was an African-American man, and they were very close friends, I knew. George Mossberg was just a prankster, but if Bert got this, he might try to make it look like racist George planted the gun in there with the intent that Jermaine or Woody got shot. This made no sense, since there would be no way he could know who might find the gun and fire it or who would be on the receiving end. But it would be an Oakland venue, meaning there would be several African-Americans on the jury. If he could make it look like a white FBI agent on the scene was a racist, he would no doubt consider using it in hopes of getting an O.J. Simpson-type acquittal or hung jury.

As I thought of this, I realized I was due to meet Bert in Oakland to look at mug shots over that dog-killing case. I ended the call and told Maeva where I was going as I headed out. I’d planned to go first to Bert’s office, but I was running late, so I texted him that I’d meet him at the police station. Okay, I know it’s illegal to use a cell phone when driving. So sue me. I was at a stop light and finished before the light turned green. I’ll get Bluetooth in my new car.

When I walked into the station, Bert was already there in the lobby talking to an Oakland P.D. plainclothes detective. Introductions were made all around and we went in to look at mug books and talk about the incident. The interview was much different from the one with the animal control deputy. The detective mostly just listened to me tell the story my way and made notes. He mentioned that the area was a high-crime one and that there were plenty of small-time punks who more or less met the descriptions I gave. The presence of a defense attorney there always made a big difference, although it really shouldn’t.

The detective pulled out the mug books and I started going through them while Bert watched. The detective left the room briefly while we flipped through the pages. He returned and told me to take my time and look over the pictures carefully. After fifteen minutes or so I spotted a photo I recognized. The skinny one, the one I had thrown over the fence, was staring me right in the face. He’d obviously been arrested before since this was a mug shot.

The detective seemed impressed and asked me to describe him further. I didn’t know what he was going for, since I’d picked him out, so I described his clothing at the time. The detective asked about the guy’s height and weight. I thought this was odd since he must have that information, and in any event the height was obvious from the mug shot since there were measurement lines behind his head. Still, Bert nodded for me to answer, so I told him my best guess, pointing out that since I was able to heave him over the chain link fence easily, he was probably no more than one thirty.

The detective nodded and took the mug book from me. He pulled out another one and flipped through it until he came to the page he wanted. He turned it toward me and asked if anyone on that page looked familiar. There were twelve photos on the page, all black males in their late teens or twenties. I quickly spotted the bigger mugger, the one with the knife and pointed him out. The officer made a note and thanked me without further questions. Then he left the room and said he’d be right back.

A minute later he returned and said he’d send us both copies of the police report and thanked us for coming in. He commented that these two were known to the department. He walked us out into the hall where there was another detective in a suit. He was a Caucasian with a graying goatee, a fact that didn’t seem significant to me at first. Within seconds, though, I heard an accented woman’s voice coming from down the hall saying, “That’s the one, the big guy with the dark beard.”

This was closely followed by a male voice echo the woman, adding, “The one in the blue suit. He’s the one I saw kill the dog.”

There at the end of the hall, where the lights had been turned off, standing with the animal control deputy, was a Chinese woman and the knife-wielding mugger. I realized I’d been set up. They were using this crime-reporting trip to stage a show-up with me as the target. They had to have several white males in suits standing together with at least one other bearded man to make it admissible. They must have known I would never agree to stand in a line-up, nor would Bert have allowed it, so this was the next best thing. It all became crystal clear. The black guy and the Chinese woman were in cahoots. Maybe the mugger had come up with the idea and knocked on her door and told her he’d seen a big, bearded, white guy in a suit kill her dog. Maybe she believed him. Maybe she knew he was the real dog killer, but saw a chance to make a buck. I didn’t know, but I could smell a civil suit coming.

Bert was livid. He started screaming obscenities at the detective, who was taking it stoically. I was seething, furious at Bert for putting me in this position. The people at the end of the hall disappeared. I started to say something but Bert told me to shut up. I took his advice. He took my elbow and led me toward the exit door still screaming at the officer. Once Bert gave him a chance to get a word in edgewise, the detective told us the D.A. had insisted on it. He pointed out that at least now they knew we had all been there at Leung’s house. He said it was my word against theirs, and that he would emphasize to the D.A. that the two punks weren’t credible. The fact that I had correctly identified the smaller guy and my ability to correctly estimate his weight gave credibility to my story about throwing him over the fence. He said he didn’t think I had anything to worry about. I noted that he hadn’t said the Chinese woman wasn’t credible. I knew she was lying, too. I distinctly heard her say I was the man she’d seen. She no doubt recognized me from the photo on my website, not from the few seconds I’d been in her yard. I was worried.

Once we were outside, Bert apologized to me and said the A.D.A. he’d been dealing with was going to get his ass reamed for this trick. He said some of the same things the detective had said about it being my word against theirs. An FBI agent versus a punk and a woman who stood to make money from a civil suit. I had no motive for randomly going into some stranger’s yard to kill their dog, and so on. Don’t worry, he said. He promised not to charge me for this morning, like that’s going to make it okay. I’d never even signed a representation agreement with him. He sets me up to be prosecuted and sued and he’s gracious enough not to charge me for that. Hey, thanks.

We still had to go out to the prison to interview Woody again. Originally I was going to ride with Bert to the prison and discuss the case with him as we went, but I was too mad at him and told him I’d meet him out there. I walked off as he called his repeated apologies to my back.

At the prison, things went a lot faster this time. We started off asking him about his relationship with Connie Jefferson. He repeated that they were “solid,” but Bert pressed him on specific statements. Had she ever said she was breaking up with him or might break up with him? Had she ever mentioned that she thought Jermaine was “cute” or good-looking? He said no to everything. I then confronted him with the statements Connie had made to me about the time he bailed on the concert. He waved that off dismissively.

“Look, that was nothing. I knew she was just joking around, just trying to make me jealous. I didn’t take it seriously.”

“So you lied about it?” I asked pointedly.

“Lied about it? No way, man. I mean, I didn’t count that. I thought you meant did she break up with me for real.”

Bert pinned him down this time. “That’s bullshit, Woody. I asked you specifically if she had made that statement and you said no. Now you admit she did. That’s a lie.”

The double-teaming seemed to have its effect on Woody. “Okay, I should have told you about that one. I knew it didn’t mean anything, and I was afraid you’d think I was guilty, that I was jealous of Jermaine.”

“Were you?” I asked.

“Jermaine? You gotta be kidding. The answer is no. Look, Connie is high-maintenance, a diva, you know? She wants to be treated first-class and she says things like that to get her way. I know she’s just playing with my head. I ignore it.”

“Then how do you explain her statement that if a girl makes her boyfriend jealous he’d kill for her? She knows this for a fact.” I asked.

“She said that?” he replied, shocked.

“She did.”

Woody sat silent for a few moments, obviously upset. Bert then pulled out photos of the gun, showing the serial number, and the SWAT bag showing Woody’s vest.

“Explain these, then,” he said.

Woody stared at the photos. I could see him silently mouthing the serial number on the gun. He shook his head as though in disbelief. Most agents don’t know the serial numbers of their guns, just as most drivers don’t know the VIN of their car, but firearms instructors are frequently cleaning their guns, inspecting others’ guns, and recording such data; I could see he recognized the number as his gun.

“Somebody set me up,” he finally declared.

“Set you up? Who would do that?” Bert asked.

“I don’t know. They must have gotten these out of my car after the shooting and replaced the ones at the scene with mine.”

Bert continued to press. “Woody, that makes no sense. You told us you had the keys all the way until you got to Oakland. Why would anyone do that? And how?”

“I’m telling you, I don’t know. I swear I didn’t know it was mine. Those SWAT bags all look alike. I just reached in and grabbed.”

“So now you’re saying they were yours at the time of the shooting?”

“I don’t know. I guess they must have been, but I swear I didn’t know. It has to be a set-up. That’s all I know.”

“Who would do that? Who?!” Bert was relentless in his cross-examination.

“I keep telling you I don’t know.”

I jumped in at this point. “Woody, first you said you didn’t call Jermaine a cocksucker, then I find out from two witnesses that you did. Then you tell us Connie never said anything to you about going out with Jermaine and we find out she did. You tell us the gun and bag weren’t yours, then we find out they were. You tell us someone staged them there afterward for the photos, then you admit they were yours and say you’re being set up. How are we supposed to believe anything you say?”

Woody put his face in his hands and started weeping. His whole body shook. After an interminable two minutes he looked up, first at Bert, then at me.

“Okay, I wasn’t up front with you. I knew what I said to Jermaine at the range. And I was sort of jealous. Just a little bit. But not enough to kill him. More irritated than mad. Maybe that’s why I called him what I did. Connie kept bringing up his name whenever I didn’t take her where she wanted to go, or she wanted me to buy her something nice. I didn’t tell you because I thought you’d think I was guilty and wouldn’t help me. But that’s it. I didn’t know about the gun or the bag. I didn’t. I can’t explain how they got into the barracks. There must be another set of keys somewhere. Somebody else moved the bag in there.”

Bert was the one to reply. “Woody, you’re an FBI agent, for god’s sake. You should know that getting caught lying is what makes people look guilty. You need to tell us the whole story one hundred percent truthfully. That’s the only way we can help you.”

“I am. This is what I’m telling you now.” He turned to me. “Cliff, you believe me, don’t you?”

“Woody, I’ve learned to withhold judgment until all the facts are in. That’s what makes me a good investigator, which is why you wanted me on your team. What I know is that other people don’t believe you and it’s my job to find evidence that will make them believe you. If you continue to lie – about anything – then I can’t make that happen.”

“But you’re going to stay on and help me, right? After this week? Bert said you …”

“No promises, Woody.”

“I’ll pay you. It may take a while but they started a fund.” He turned to Bert.

“It’s not growing very fast, Woody,” Bert said. “Twelve thousand so far, according to Porillo. Do you have any other assets you can liquidate? A car, maybe?”

“So it’s all about money with you guys? You don’t care that I’m innocent? You don’t believe that I’m innocent?”

“Of course we care, but everything costs money. Investigators cost money. I have to pay my staff, my overhead. Cliff has to pay his. I’ll be hiring experts. They don’t work for free and they need the money up front on criminal cases. We need you to take a realistic view of this case and figure out a way to pay for a decent defense.”

Woody’s shoulders drooped, and he dropped his gaze, too. When he looked up again, his cheeks were streaked with tears. “My car’s not paid off. If I sold it now the bank would get all the money. I’ll withdraw my retirement. They’ll hit me with a big penalty for early withdrawal, but I think that’s maybe twenty grand.”

I hated this kind of money talk, but Bert was right. A proper murder defense was going to cost close to a million dollars if it went to trial.

“Woody, give me something to work with here. Tell me who could have a reason to set you up? Who else could have had a key to your car? Anybody?”

“The only other keys are the ones the garage has and the spare in San Jose R.A.”

“The only person from San Jose there besides you was the ASAC. Did Dawson have something against you?”

“Dawson? No. Not that I know of. I mean, he got mad when my CI turned in an I.O. fugitive to the PD instead of to us. He chewed me out a couple of weeks ago, but it wasn’t my fault. The CI was probably getting bigger bucks from the police. But Dawson was normal after that. He was talking sports with me the next day.”

I knew that an I.O. fugitive was one for which a wanted poster had been printed and distributed nationwide. The term I.O. stood for identification order, that is, a wanted poster, in the criminal context. I.O. fugitives were bigger fish than ordinary fugitives, if there is such a thing, but even if it had been Woody’s fault, it wouldn’t be reason to set him up for murder. Still, it got me thinking. Dawson had been reticent about talking to me and was the only other person with access to a key to his car so far as we knew. I decided to look into his background some more.

I asked Woody for the passwords to all his accounts – email, social media, bank, phone, computer, and anything else he could think of. I was expecting a long list, but it turned out he used the same one on everything: mypassword123. Had he never heard of identity theft? This wasn’t quite as bad as 123456, but not by much.

I walked him through the entire day, his arrival, where he parked, who else was there at the time, who was talking to whom, was anybody being secretive, were there any arguments, did he stay through the whole safety video, did he notice others around his car or going out during the video. The answers didn’t help. Everything seemed normal. He’d noticed no one at the car. He was sure he hadn’t left during the video, which was at least something. He remembered because he needed to use the bathroom the whole time and was relieved, literally, when the video was over.

Bert and I questioned him more closely about the shooting itself.

“Why didn’t you know the gun was loaded when you picked it up?” Bert asked pointedly. “Doesn’t a loaded gun weigh more than an unloaded one?”

“Of course, but a little five shot like that loaded weighs a lot less than a Sig pistol loaded with sixteen rounds. It still feels very light. In fact, it probably weighs less than an unloaded service pistol. Unless you’ve just been handling an unloaded five shot, it’s going to feel unloaded.”

Bert was obviously having trouble buying this, but I understood what Woody was saying. I’d handled different handguns during the same shooting session, and the feel is quite different for each one.

“What load did you use in the revolver?” I asked.

“Regular .38 service ammo,” he replied, puzzled.

“Hollow point?”

“Yeah. Why?”

“Why did you have that SWAT bag and revolver there that day?”

“I was going to qualify with it after the suits finished their qualifying. You know I have to qualify with it to carry it.”

“Then why didn’t you have it loaded with wadcutter?”

“I hadn’t been shooting yet. I don’t keep wadcutter at home. I’d have loaded up when it was our time to shoot.”

Wadcutter is the ammunition usually used on the range when shooting paper targets with a revolver. It’s not used with semi-automatic pistols because it doesn’t feed in correctly. It’s cheaper ammunition because it contains less powder and a lighter slug than hollow-point service ammo. The slug is flat-nosed rather than the usually round-nosed bullet most people are familiar with. It makes a nice neat circular hole in the target, unlike a blunt-nosed bullet, which tears a jagged hole. That makes it easier to score and also a bit safer since it is less likely to penetrate multiple layers or to ricochet. I was hoping he’d say he had it loaded with wadcutter. The lighter bullets might have been an additional explanation for why the revolver felt unloaded, although the difference in weight would have been slight. The main reason I was hoping for wadcutter was that if he’d wanted to kill someone, he wouldn’t have used wadcutter. A contact gut shot using wadcutter still might have killed Jermaine, but it probably wouldn’t have. It’s designed to have only enough power to penetrate a paper target.

Woody’s explanation made sense, but I could see how the prosecution could use that ammunition against him. I explained this to Bert while Woody shook his head in disbelief that this could be used as a sign of guilt. I could tell from Bert’s expression, though, that he was still skeptical of Woody’s explanation. If he was skeptical, I knew a lay jury would be, too. In fact, I was, too.

“Don’t you normally keep your revolver in a holster?” I continued.

“Yeah, an ankle holster.”

“So why was it in the end pocket of the SWAT bag while the holster was in the main compartment?”

“I can’t qualify with it drawing it from my ankle. You know the course has some quick draw stations. I threw my belt holster in the bag, too, so I could use it for the course.”

“Then you removed the gun from the ankle holster that morning?”

“Yeah. What’re you getting at?”

“Just answer the questions. So why didn’t you put the gun in the belt holster? Why put it all by itself in the end pocket?”

“Uh, I don’t know. I didn’t think it was important. I was just throwin’ stuff in the bag.”

Bert saw where I was going with this. He jumped in with the next question. “If you were preparing to qualify with it and needed different ammunition, why didn’t you unload what was in the gun?”

“C’mon you guys, this is ridiculous. Why’re you jumpin’ all over me?”

Bert continued, “These are exactly the kind of questions the prosecution will ask you if you testify. And if you don’t have good answers, you aren’t going to testify. So why leave it loaded in the bag?”

“I guess it’s just habit. I don’t want loose ammo floating around my bag. You don’t carry around an unloaded gun. It’s not useful unloaded.”

“And it’s useful in the end pocket of your SWAT bag locked in the trunk of your car? How do you quick draw from that?”

“Screw you! You’re supposed to be on my side. I’d be better off with a public defender.”

“No, you wouldn’t. Do you have an answer or don’t you?”

I decided Woody had had enough. “Calm down Woody,” I said. “You need to think these questions through and answer calmly and truthfully. You didn’t unload the gun because when you get to the range and prepare to shoot, you’re supposed to shoot the first five shots of a practice round with your old service ammo, reload with wadcutter, and then at the end reload with fresh ammunition. It’s FBI policy to use up the old ammunition so that no agent is out there in the field with ammunition that’s been sitting in his gun for twenty years and won’t fire. That’s right, isn’t it?”

“Of course that’s right. Everyone knows that.”

“No, they don’t. Bert didn’t know it and neither will anyone on the jury. Whether you testify or not, Bert needs to know the answer to these questions so he can cross examine the prosecution witnesses, and so he can explain your behavior to the jury. You need to give him answers.”

Bert took on a conciliatory tone. “I’m sorry if I pissed you off, Woody, but I’m trying to make you see what you’re facing here. I guarantee you that if you’re put on the stand Sheila Morrissey will give you a lot harder grilling than what I just did.”

“Yeah, yeah. Okay, I get it. I’m sorry. Ask me whatever you have to.”

Bert went back to gentle questioning. “How about the car. Did you put the bag in the car that morning or the previous day or when?”

“That same morning. The bag was in the trunk when I left for the range.”

“Did you open up the trunk to take it out at the range? Maybe you left the car unlocked accidentally.”

“No. I just got out, locking the car with the button on the door, and walked over to sign in. Then I started talking to the guys. Sports and stuff. Then we got called into the classroom.”

“Did you stop en route? For coffee, maybe?”

“Yeah, now that you mention it. There’s Starbucks right where you turn off 580 for Santa Rita.”

“Is that a spot other agents use?” Bert thought he was onto something.

“Yeah, it is. It is. I saw Dawson there while I was in line. He was just getting his coffee. He said hi to me and left.”

“And he’s the ASAC from San Jose, right? He could have taken your bag out of your trunk while you were inside, isn’t that right?”

“If he’d brought the keys with him. But why would he do that? How would he even know I’d be there? And you can see the parking lot from inside. I probably wouldn’t have seen him since I was looking at the barista, but he couldn’t know that.”

“Do you have a better explanation for how the bag got into the barracks?”

“No.”

“At the range, did you open the car for any reason? To get sunglasses, shed your jacket, put your phone away? Anything.”

Woody thought about it a long time. “No. I was wearing my grays the whole time; no jacket. I use the Bureau eye protection when I shoot. I wasn’t wearing any sunglasses. I left my phone in the car when I got out. I didn’t go back.”

I tapped Bert on the shoulder to stop this line of questioning. “Hold on a sec. You left your phone there? So the FBI has your phone now?” I didn’t remember seeing that on the property list, but that list had been the property taken from his person in Oakland. “Are they going to find anything embarrassing on it?”

I saw his face fall. “Oh, that. Connie sent me a couple of selfies.”

“Let me guess. Nude?”

“Yeah. Nude.”

“Did you send them to anyone else?”

“No way. I wouldn’t do that.”

“Did you send her any of you?”

“Well, yeah. It’s only fair, like. Only after she sent me hers, though. I mean …”

“Okay, okay. No explanation needed. Are these photos on your computer, too?”

“No, just the phone.”

“Okay, anything else? Texts? Links to some site that make you look bad?”

“We texted all the time. It gets pretty, mm, romantic sometimes. But I deleted all that stuff.”

Bert wanted the lead again so he commented, “They’ll get everything from the providers, anyway. You know that. Are we going to see some horrible email or message? You threatening Jermaine? Connie telling you she’s breaking up? Anything?”

“No, nothing like that.”

“What about medicines? Are you taking any medications?”

“High cholesterol pills. Sometimes a sleeping pill when I have trouble sleeping.”

“Statins?”

“Lipitor. That’s a statin, isn’t it.”

“They can make you irritable, angry. Have you felt a sense of rage since you started taking them?”

“No, man. I had no problem with that.”

“What kind of sleeping pills?”

“Ambien. I have a prescription.”

“And those can make you hallucinate. Did you take an Ambien the night before firearms?”

“I don’t remember.”

The guard knocked on our door. Our time was up. We’d gotten a lot more information to work with this time. We thanked Woody and left the prison. Outside Bert apologized to me once again about the police station.

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