Sleight of Hand

CHAPTER Eight

On Monday morning, Commonwealth of Virginia v. Ross commenced in the most ornate courtroom in the Lee County Courthouse. It had been built in the days when floor-to-ceiling columns of real marble were affordable and workmen knew how to decorate a high ceiling with frescoes of chubby cherubs and Roman gods. Somber oil paintings of judges past stared down at the litigants and spectators from cream-colored walls, and the bench was elaborately carved oak. All in all, it was a fitting place to hold court if you thought you were royalty, which described the mind-set of the Honorable Preston L. Gardner III.

Gardner had been the youngest judge in the state when he was appointed three years earlier. He had piercing blue eyes fixed in a perpetual squint, thin lips always set in a disapproving scowl, and plastered-down, jet-black hair. He reminded Charles Benedict of the obnoxious nerds he had loved to torment in junior high.

Benedict had been in Gardner’s court on a number of occasions and had never seen him dressed in anything but a black, three-piece suit; blue, red, and yellow striped tie; and his Phi Beta Kappa key. Gardner wore the key because he loved to remind people that he was brilliant. The first things one noticed entering his chambers were diplomas attesting to the honors he’d been awarded at Dartmouth and Harvard Law and the certificate proving that he was a member of Mensa. If the Guinness Book of Records kept track of oversized egos, Benedict was certain that Gardner would be listed.

Sitting next to Benedict was Kyle Ross. The defendant was a twenty-year-old junior at the University of Virginia majoring in prelaw. He had curly blond hair, soft blue eyes, and a deceptively boyish appearance. Kyle was an insufferable whiner, but Benedict could put up with any jerk who paid his outrageous fee.

Seated behind Benedict was Devon Ross, Kyle’s father, and Devon’s trophy wife, a peroxide blonde who was only slightly older than Kyle. With his heavily veined nose, slightly bloated face, and middle-age spread, Devon Ross was a preview of what Kyle would look like in twenty years. Devon was a senior partner in the Richmond law firm Kyle would join when he graduated from law school. But Kyle would never be able to go to law school if he was convicted of possession and distribution of cocaine.

It had taken the whole morning to pick a jury, and both sides concluded their opening statements a little after two. As soon as the opening statements had been made, Judge Gardner told the commonwealth to call its first witness.

“You’re on top of this, right?” Kyle asked Benedict nervously.

“Relax,” Benedict whispered. “You’re going to be fine.”

“Because that bitch is lying, and so is that cop.”

Benedict restrained himself from smashing Ross in the face. The so-called bitch was an innocent thirteen-year-old girl, and two decorated police officers supported her story.

“The commonwealth calls Anita Lesley, Your Honor,” Mary Maguire said. Benedict had met with Maguire a few times to talk about the case. She was high-strung and very insecure, which was not surprising for a new hire handling her first major felony.

During pretrial motions the rail-thin redhead had looked stressed out. She had fidgeted at counsel table, moved files around, tapped her left foot incessantly, and shifted on her chair every few seconds. Maguire argued long after it was clear that the judge was not going to rule the way she wanted him to, and her voice grew strident when an adverse witness did not answer a question the way she had anticipated. Even when she prevailed, Maguire had looked more relieved than happy.

The door to the courtroom opened and a shy, conservatively dressed teenager walked down the aisle to the witness stand. She had wheat-colored hair and pale skin. Benedict noticed that Anita Lesley scrupulously avoided looking at his client and that her hand shook when she took the oath.

“Please tell the jury your age,” Maguire said.

The girl’s answer was inaudible and the judge told her to speak up.

“I’m thirteen.”

“What grade are you in?”

“Eighth.”

“Do you have an older brother?”

“Yes, Jerry.”

“Where does he go to school?”

“The University of Virginia.”

“Is he a classmate of the defendant?”

“Yes, ma’am.”

“On the evening of April 7 did your brother have a party at your house?”

“Our folks were out of town and he wasn’t supposed to, but he had a bunch of his fraternity brothers over.”

“Is the defendant a member of your brother’s fraternity?”

“Yes.”

“Was the party loud?”

“Yeah, they had the music turned way up and people were yelling.”

“Did you come in contact with the defendant during the party?”

“Yes.”

“Tell the jurors what happened.”

“I knew Kyle,” Anita said. She was looking at her lap and her voice quivered. Several of the jurors flashed smiles of encouragement. “He’d been at my house before and he’d always been nice. So I didn’t think anything about it when he came over and talked to me.”

“What did you talk about?”

“Nothing much. We just talked, you know.”

“What happened next?”

“Kyle said it was hot and did I want to go outside. So we went outside and he asked me about school and we walked.”

“Where did you end up?”

“On the street where his car was.”

“Did he ask you to go into his car?”

“He said he had a surprise for me, a present.”

“Where was the present?”

“Kyle said it was in the car.”

“Did you get in the car?”

“Well, yeah. I was a little nervous. But he wasn’t acting strange or anything and I trusted him because he was my brother’s friend.”

“What happened in the car?”

“He closed the door. Then he put his arm sort of behind me. Not touching but right above my shoulders.”

“Did he say anything to you?”

“Yeah, he told me he always thought I was . . . was hot.”

“How did that make you feel?”

Anita shrugged. “Embarrassed, I guess.”

“What else did he say?”

“How I was more mature than the stuck-up girls at his school, and smarter. Then he asked me if I wanted my present. I was curious so I said yeah.”

“What was the present?”

“He leaned over and kissed me.”

“How did that make you feel?”

“A little scared, but I wasn’t worried.”

“Did you make out?”

Anita turned red. “A little.”

Once again, the witness’s answer was barely audible. Judge Gardner reminded her to speak up in an uncharacteristically sympathetic tone.

“Did the defendant do anything that made you want to stop making out?” the prosecutor continued.

“Yeah, he started touching me in . . . in places. I asked him to stop. He said he knew I wanted to and I said I didn’t.”

“What happened then?”

“He got this ziplock bag out of his glove compartment and he said it would loosen me up.”

“What was in the bag?”

“Objection,” Benedict said. “That would require an expert opinion, Your Honor.”

“I’ll retract the question,” Maguire said before the judge could rule.

“Did the defendant tell you what was in the bag?” Maguire asked.

“No. He just said it would make me feel great.”

“What did the material in the bag look like?”

“White powder.”

Benedict watched as the jurors turned their attention to his client. None of them looked sympathetic.

“Did you try some?”

“No. I got scared. I said I wanted to go back to the party.”

“Did the defendant let you?”

“No. He sort of moved on top of me in my seat, the passenger seat, and he started to . . . to feel me up.”

Some of the women on the jury looked upset. Two of the men were frowning.

“What did you do?”

“I tried to push him off and I yelled for him to stop.”

“What happened then?”

“There was a knock on the window.”

“Who knocked?”

“It was a policeman. He was shining a light into the car. He said to open the door.”

“What happened then?”

“Kyle freaked out. He tried to crawl over me to get out on my side. I grabbed the lock and pulled it up.”

“Why did you do that?”

“I wanted him off of me.”

“What happened then?”

“Kyle scrambled out of the car, but he didn’t see the other policeman, and that policeman grabbed him.”

“What did you do?”

“Nothing. I was scared, so I just sat there.”

“What happened next?”

“After they grabbed Kyle, the first policeman asked me if I was okay. I said yeah. That’s when he saw the ziplock bag. He said, ‘What have we here?’ and I said I didn’t know and that I hadn’t touched it. Then he told me to get out of the car, and he told me to go away from Kyle.”

“What happened between the defendant and the officers?”

“I don’t know. I just waited. I was scared and I didn’t want anything to do with it.”

“Did the officers arrest you?”

“No, they put Kyle in the back of a police car. Then they brought me inside and told everyone they’d had complaints about the noise and everyone should go home.”

“No further questions,” the prosecutor said.

“Nothing, Your Honor,” Benedict said.

Kyle pulled at Benedict’s sleeve. “Don’t let her off. Cross-examine that lying cunt.”

“She’s got the jurors on her side, Kyle. If I get on her it will just upset them.”

“But she’s lying. That was her coke. And I never touched her. I can get any girl I want. Why would I waste time on that scrawny bitch?”

“Keep your cool and remember what you have to do. You’re going to be okay,” Benedict reassured Ross.

“Call your next witness, Miss Maguire,” Judge Gardner said.

Stephen Hurley, the arresting officer, took the stand. He testified that he and his partner had driven to the party because of complaints about the noise. They were walking toward the house when they saw Miss Lesley and the defendant struggling in the front seat of a parked car. Hurley explained how he’d found a ziplock bag containing a white powder in the front seat and had arrested the defendant. Hurley told the jury that the ziplock bag had been turned over to the crime lab for testing.

After Benedict told the court that he had no questions for the witness, Maguire called Justin Wing, a pudgy forensic expert who testified frequently for the commonwealth in drug cases. The prosecutor asked the chemist to list his credentials. Then she picked up an object that had been entered in evidence.

“Officer Wing, I’m handing you Commonwealth Exhibit Six. Do you recognize it?”

“Yes. That’s the ziplock bag containing a white powder that was given to me by Officer Hurley.”

“Did you find any fingerprints on Exhibit Six?”

“I did.”

“To whom did they belong?”

“All of the fingerprints I found on Exhibit Six belonged to the defendant, Kyle Ross.”

“Now, Officer, did you test some of the powder in Exhibit Six at the crime lab?”

“I did.”

“And what did your tests reveal?”

“I concluded that the substance in the ziplock bag was a controlled substance, cocaine.”

“Thank you. I have no further questions for the witness.”

“Officer Wing,” Benedict said as he crossed the room, “may I please see Exhibit Six?”

The witness handed the bag to Benedict. As soon as he had the bag, Benedict turned his back so that the judge, prosecutor, and witness could not see his hands. When Benedict was halfway to the defense counsel table he dipped his chin a fraction of an inch.

Kyle Ross leaped to his feet. “This is a goddamn frame,” he screamed.

Every eye in the courtroom turned toward Ross. The judge banged his gavel and called for order but Kyle kept screaming. Benedict handed the ziplock bag to the bailiff and rushed to his client.

“Stop this, Kyle,” Benedict said loudly. He grabbed his client and forced him into his seat. Ross resisted for a moment before dropping onto his chair. Benedict sat beside Kyle and placed a reassuring hand on Kyle’s shoulder while he whispered to him. A moment later, Benedict stood.

“Your Honor, may we take a short recess so my client can compose himself?”

Gardner looked at the clock. “It’s almost time for the afternoon recess, so let’s take a fifteen-minute break.”

Gardner sent the jury out. Then the judge cast a stern look at the defense table.

“Tell your client about contempt of court, Mr. Benedict. One more outburst and I’ll be the one explaining it to him.”

“I’ll talk to him, Your Honor,” Benedict assured the judge as Gardner stormed off the bench. Benedict conferred with Kyle for a few minutes for appearances’ sake. Then he headed up the aisle, out of the courtroom, and down the hall toward the men’s room. When he was halfway down the hall, a short, unassuming man passed him going the other way. This man worked for Nikolai Orlansky. Benedict and the short man touched palms. When the short man left the courthouse, a ziplock bag was tucked into his inside jacket pocket.



“Mr. Wing,” Benedict said when court reconvened, “you’ve testified that Officer Hurley gave you Exhibit Six and that you tested the white powder in it and concluded that it was cocaine?”

“That’s correct.”

Benedict turned to the dais. “Your Honor, I’ve served a subpoena on the crime lab and I have a person waiting in the hall. I’d like to have her come into the courtroom at this time.”

Mary Maguire sprang to her feet. “I object. Mr. Benedict didn’t put anyone from the crime lab on his witness list.”

“I apologize for not being clear. This person is not a witness. She merely transported some equipment from the lab that I want Officer Wing to use.”

Judge Gardner frowned. “Bailiff, take the jury out.”

When the jury was in the jury room, Gardner turned to Benedict.

“Have this person come in so we can learn what this is about.”

Moments later, Carolyn Bosh walked to the front of the courtroom. She was a forensic expert who was well known to Maguire and the judge.

“Officer Bosh,” Benedict asked the forensic expert, “at my request have you brought to court everything Officer Wing would need to test the white powder in Exhibit Six to see if it is cocaine?”

“Yes.”

“Your Honor, I’d like Officer Wing to examine what Officer Bosh brought to court and give his opinion on whether he can use these chemicals and paraphernalia to test the white powder in Exhibit Six to see if it is really cocaine.”

“Objection,” Maguire said.

“What are your grounds?” Gardner asked.

“I . . . he already tested it.”

“Out of the presence of the jury, Your Honor,” Benedict said. “If the prosecutor really believes that there is cocaine in Exhibit Six she should encourage Officer Wing to confirm his conclusion.”

Gardner was quiet for a moment. “I’m going to allow the retest. This is legitimate cross-examination.”

As soon as the jury was back, Benedict began to question the witness.

“Officer Wing, I had some items delivered to you from the crime lab. Is this everything you need to retest Exhibit Six to see if this white powder is cocaine?”

“Yes.”

“Then why don’t you retest the sample and explain to the jury what you’re doing.”

Wing turned to the jury. “I’m going to perform what is known as the Croak, or Scott, test.”

He showed the jurors a small glass vial containing an amber substance marked DEA-II.

“This vial was prepared by the Drug Enforcement Administration and it contains cocaine hydrochloride, or ninety-nine-percent pure cocaine. Before I test the powder in Exhibit Six I’ll test this standard to make sure my reagents are working correctly.”

Wing uncorked a small test tube partially filled with red liquid and poured a sample of the standard into it. Then Wing corked the test tube and shook it gently.

“I’m now mixing the standard with cobalt thiocyanate and glycerin, my reagents.”

“Ah,” Wing smiled as the extract turned a vivid blue. “The change from red to bright blue indicates the possible presence of cocaine, but we’re not through yet,” Wing said.

“When I add hydrochloric acid to the mixture the solution should turn pink.”

When it did, Wing added chloroform and shook the mixture gently. A blue color appeared in the chloroform layer. Wing smiled triumphantly.

“The change of color from red to vivid blue to pink, then back to blue in the chloroform layer, tells us that cocaine is present.”

“Why don’t we see what happens when you test Exhibit Six?” Benedict suggested.

The bailiff handed Wing the ziplock bag. The forensic expert opened it and used a small stainless steel rod with a flattened end to spoon out a tiny mound of powder from the baggie. Then he uncorked another test tube that was partially filled with reagent and poured the powder into it. He recorked the tube and agitated the contents.

“Something wrong?” Benedict asked when Wing looked blankly at the weak blue color of the mixture. Mary Maguire, the judge, and all of the jurors leaned forward.

“Er, um, the color is a little pale, but . . .”

Wing poured in the acid. The mixture fizzed.

“What’s going on, Officer Wing?” Benedict asked.

Wing shook his head and stared dumbfounded at the bubbly mess in the test tube. He added the chloroform but no blue appeared.

“This . . . this shouldn’t be happening,” Wing stuttered.

“What shouldn’t?” Benedict asked.

“It’s reacting like baking soda,” Wing said in disbelief.

“What!” Maguire shouted.

Gardner rapped his gavel. “Are you saying that the powder in Exhibit Six is not cocaine?” he demanded of the witness.

Wing looked as if a piano had just landed on him. “I swear, Judge. This tested positive for cocaine in the lab.”

“Where no one could see the test,” Benedict told the jurors. “But when there are witnesses present we get baking soda, don’t we, Officer Wing?”

Wing opened his mouth, then shut it quickly.

What Benedict didn’t say was that he had memorized everything about Exhibit Six and taken a photo of it with his cell phone when he’d viewed it in the property room. Then he had created a duplicate baggie filled with baking soda, which he’d switched for the real exhibit during Kyle’s outburst.

“He did this,” Maguire shouted, pointing an accusing finger at Charles Benedict.

“Ridiculous,” Benedict protested.

Gardner banged his gavel. “George, take the jurors to the jury room,” he told his bailiff.

As soon as the jurors were out of the courtroom, the judge glared at the lawyers.

“Both of you, in my chambers, now! And I want to see Officer Wing, too.”

Benedict led his client to the judge’s chambers. Mary Maguire followed with Justin Wing in tow. They found Gardner sitting behind his desk. He did not look happy.

“We’re going to get to the bottom of this,” the judge said.

“I certainly hope so,” Benedict said. “I for one would like to know why Mr. Ross was forced to go through the agony and expense of a trial for possession of baking soda.”

The prosecutor turned to the judge. “Justin Wing is as honest as the day is long. If he swore that powder was cocaine, it was cocaine.”

“Everyone makes mistakes,” Benedict said magnanimously. “I have no idea how or why Officer Wing screwed up, but it’s obvious that he did.”

“Wing didn’t screw up. You had something to do with this,” Maguire insisted.

“Enough,” Gardner said. “Officer Wing, how do you explain this?”

Wing looked thoroughly befuddled. “I can’t, Judge. That powder tested for cocaine in the lab. The only way it could test as baking soda is if it was switched.”

“And how was that accomplished?” Gardner asked.

“I have no idea,” Wing said. “I put it in our vault after I tested it. Then I brought it to court.”

“There was no break in the chain of custody?” Gardner asked.

“I guess someone could have gone into the vault and switched the cocaine. That’s the only thing I can think of.”

Gardner looked upset. Maguire looked like she wanted to say something but couldn’t think of a thing to say. But Benedict could.

“Judge, I believe it would be appropriate to dismiss the charges against Mr. Ross.”

“Miss Maguire?” the judge asked the prosecutor.

“I . . . I’ll have to talk to Mrs. Blair. I’ve never had anything like this happen.”

Gardner turned to his bailiff. “George, tell Carrie Blair she’s wanted in my chambers ASAP.”

Judge Gardner read his mail and signed documents while everyone waited for Carrie Blair. Ten minutes later, Blair was ushered into the judge’s chambers and Gardner explained why he had summoned her.

“It’s obvious that your case has fallen apart,” Gardner concluded. “The question is, what do you intend to do about it? Unless you can suggest something that will keep it afloat, I will entertain a motion to dismiss if Mr. Benedict makes it.”

“May I confer with Mary and Officer Wing?” Blair asked.

Gardner nodded and Blair led Maguire and the witness into the hall. She glared at Benedict as she passed him. The defense attorney didn’t react. Fifteen minutes later, Blair, Maguire, and Wing reentered the judge’s chambers.

“In light of what happened with the retest, my office has no recourse but to dismiss the case,” Blair told Gardner. She looked furious.

“May I assume there will be an investigation conducted to try to discover how this fiasco occurred?” Gardner said. He sounded as upset as Blair.

“Yes. I’ll get the ball rolling as soon as I get upstairs.” Blair looked at Benedict, who smiled blandly. “And I assure you that the investigation will include a talk with Mr. Benedict.”