Witnesses Revisited

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Witnesses Revisited

Friday, 20 July 2007 09:43

As the trial of John Berchielli began to wind down, it seemed to take on a cyclical form. At the moment that it appeared that the presentation of evidence had concluded, witnesses long since dismissed began to take the stand once again. The revisiting of old issues created a strong feeling of déjà vu, in addition to a mild sense of haunting.

Early into the questioning, the reasoning behind the re-emergence of witnesses became apparent. Defense attorney Arturo Reyes was challenging some of the reports that officers had made about their interviews with Berchielli's co-defendant Sheldon Webber. The statements made by Sergeant Jeana Zwolinski were particularly problematic to the defense, and her testimony became the main focus of the witness re-examination.

Once the tough but diminutive sergeant was seated back on the witness stand, her questioning was guided first by prosecutor Maureen O'Connor. Zwolinski was, after all, the prosecution's witness.

"Your report says that Mr. Webber told you that he and Mr. Berchielli 'got high every morning.' Did you make that up?" the prosecutor asked.

"No," Zwolinski replied.

"Your report says that Mr. Webber said that Mr. Berchielli 'tried to hide it from his daughter and said that he guessed he believed kids shouldn't be exposed to it, but that kids always know anyway.' Did you make that up?"

"No."

"Did Mr. Webber tell you that he had touched the wire and found that it wasn't operating?"

"No." The witness's responses had all the ingenuity of a broken record, but half the sincerity.

"Your reports say that Mr. Webber told you that he watered and took care of the plants. Did you make that up?"

"No."

"Your reports says that Mr. Webber said he 'told Mr. Berchielli that his numbers of marijuana plants were a little high, but that was his business.' Did you make that up?"

"No."

"So Mr. Webber was speaking about the grow operation as a business?" the prosecutor asked, clarifying the claim.

"Yes," Zwolinski said obediently.

The interpretation was a little hard to swallow. "That's his business," when used in this context, is a common figure of speech that indicates personal behavior and choices rather than implying the activities of commercial enterprise. Suggesting that the latter was the intended meaning of this comment was a far-fetched venture for the prosecution, but it was hard to tell how the jurors saw it -- their blank faces were either a result of listlessness or acceptance.

The prosecutor moved on. "Did Mr. Webber tell you about sampling all the different kinds of marijuana?"

"Yes," Zwolinski answered. "He said it was difficult for him to catch a buzz because he smoked so much."

"Catch a what?" the judge interrupted, face scrunched in confusion, cupping his ear. "I don't understand what you're saying. I don't think I'm familiar with that term."

"Catch a buzzzzz," Zwolinski repeated loudly and slowly, drawing out the z's to form an audible buzzing noise. The onomatopoeia was grin inducing.

Maureen O'Connor continued questioning the sergeant. "Did Mr. Webber say he had to move all the marijuana plants to get them out of the view of SMUD employees who came to read the meter?"

"Yes," Zwolinski replied.

"Did Mr. Webber say the door had a lock and that Mr. Berchielli did not want the grow to be known?"

"Yes."

"Did Mr. Webber say that he thought the grow was legal?"

"No."

The prosecutor then asked Zwolinski about her impressions of Mr. Webber, based on his responses during the interview. The sergeant paused for a moment of thought, then answered. "He was loyal and grateful to Mr. Berchielli," Zwolinski reflected. "He was very separative about what were his job duties. He didn't want to incriminate Mr. Berchielli."

At this, Maureen O'Connor thanked the witness and took her seat, leaving the floor open for defense attorney Arturo Reyes. He first asked Zwolinski if her report was verbatim, and she replied that it was not. She claimed that certain sections, however, were word-for-word, and that these were indicated by the use of quotation marks. It was all common sense stuff -- that is, until she was questioned about some of those particular sections.

"In your report, do you use quotation marks around 'high every morning'?" Reyes asked.

"No," Zwolinski told him.

"So that's not verbatim?" came the defense's suggestion.

"It is verbatim," Zwolinski insisted. "I take meticulous notes."

"Then why not use quotation marks?" Reyes inquired.

The judge had had enough, and interrupted the cross-examination. "She is under no compulsion to use quotation marks," he said sternly.

The prosecutor raised an objection to inquiries about Zwolinski's interview technique, so the defense instead asked whether the sergeant had read back her notes and discussed them with Webber. Zwolinski said she had, but clearly she had not been referring to the interview as a whole, because the defense attorney was unable to pinpoint a single subject for which this had been the case.

Reyes attempted to get to specifics. "Did you discuss the booby traps and then go back over your notes and ask him if they were accurate?"

"No," Zwolinski admitted.

"Did you discuss what you had written about his feelings about the grow?"

"No."

"Did you ask Mr. Webber whether he thought the grow was legal or whether he touched the hotwire?"

"No."

Reyes then edged near his point. "So the reason he didn't answer these questions was because you never asked him?"

The sergeant didn't get the chance to respond, however. Judge Mason instead grumbled another interjection, telling the defense attorney not to ask questions in the negative. This admonishment interrupted Reyes on the verge of a critical point -- the prosecutor had implied that Webber did not think the grow was legal, but the reality was that Webber had never spoken to the sergeant on the subject. It was all a tricky game of linguistics, and the prosecutor had spun the semantics more than once before.

"When you talk about Mr. Webber saying 'but that was his business,' did you think this meant his concern, or that it meant an actual commercial enterprise?" Reyes asked.

"I thought it meant both," the sergeant maintained.

Jodi O'Connor took over the cross-examination briefly, with just one subject to address. "What did you do with the original notes?" the defense attorney inquired.

"I either shredded them or put them in a file," Zwolinski shrugged. "I don't know."

"Do you have them now?" The defense attorney was distantly hopeful.

"I don't know," Zwolinski evaded, shaking her head.

At this roadblock, questioning ceased and the witness was excused for the final time. Judge Mason officially declared that evidence in the case was closed, and gave the jury a short break before moving on to closing arguments and instructions for deliberations. As they filed out of the courtroom and towards the cafeteria, the jurors appeared fatigued and apprehensive in equal measure. It was an attitude mimicked in the body language of defense attorney Jodi O'Connor as well as the judge himself.

Arturo Reyes, by contrast, was exuberant. "This is the easiest trial I've ever done," he chuckled to his colleague, before leaning over to confer with his re-shackled client. The case was rounding the corner towards completion, and the prospects of the two co-defendants were appearing more and more dramatically polarized.

Next: Closing Arguments

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