Killers in the Family Page 15
“Can you reload a Taser while in foot pursuit?”
“No.”
Officer Lasley, at the prosecution’s request, then showed the jury how a Taser worked. He next described what “tunnel vision” is and how it comes about during times of intense stress. After this, he described the bulletproof vest worn by police officers and explained to the jurors the “force continuum,” meaning the type of force police officers must use in order to gain compliance, starting with verbal commands and moving all the way up to deadly force.
Following this, the prosecution turned Lasley over to the defense for cross-examination. Defense attorney Jeffrey Neel handled the questioning, and he again asked about how many rounds a Glock Model 22 carried. He also asked, “What should an officer do if a Taser doesn’t work?”
“Usually drop it,” Lasley answered.
The judge then read a question posed by one of the jurors. “Does clothing affect a Taser?”
“Yes, we even have winter cartridges with longer prongs,” he said (i.e., in order to penetrate thicker clothing).
This ended the testimony for the day. The judge dismissed the jurors for the weekend, again with the admonishment not to talk to anyone about the case.
The next day of testimony, November 9, 2009, deputy prosecutor Denise Robinson asked Detective Sergeant Jeff Breedlove to take the witness stand. After being sworn in, he told the jurors that he was a seventeen-year veteran of the Indianapolis Metropolitan Police Department, and worked as a homicide unit supervisor. He said he became the lead detective on the Fishburn/Reese shooting, that he received the run at 7:26 P.M., and arrived at the scene at 7:36 P.M. He had the officers walk him through what had happened and then began managing the crime scene.
“I assigned certain detectives to do a canvass of the area to look for any witnesses,” he responded after being asked what he did at the crime scene. “I assigned a sergeant to be with the crime lab and assist them in collecting evidence. I assigned some officers to take statements for me. I assigned a sergeant to go to the hospital, and I assigned an officer to collect the guns” (of the officers who had shot Brian Reese).
He also said he had the .38 caliber Smith & Wesson revolver recovered at the crime scene tested for DNA, and the bullet removed from Officer Fishburn’s bulletproof vest compared against the revolver. Following this, he showed the jurors a video taken of the crime scene at 800 North Euclid Avenue.
Then, to counter any claims that Brian hadn’t intended to kill Fishburn when he fired the gun at him, the prosecution put into evidence several tape recordings of telephone calls that Brian had made while in jail, calls in which he talked about what had happened at the shooting site. In one of the calls, he told his girlfriend’s sister, Catherine Bishop, that he and the police officer ran between a couple of houses, and “that’s when I did what I did.”
This was evidence directly from the lips of the accused, and from which the jurors could not only hear Brian Reese’s words, but also his tone of voice, which didn’t sound remorseful. Had it been secretly recorded? Had the police surreptitiously tapped the telephone Brian had used? No. There are signs posted where the inmates use the telephone that state that conversations are being recorded, and a tape recording also announces this information with each call made. One would think that inmates would be very careful about what they say on the phone, but, as demonstrated by Brian, very often they are not.
The prosecution then turned Detective Sergeant Breedlove over for cross-examination. Defense attorney David Shircliff handled the questioning. He asked several questions about Breedlove’s testimony and his duties as lead detective. Then he asked, “Are you the one who decides who is a ‘credible witness’?”
“Yes.”
“Do you consider Gary Rees trustworthy?”
Deputy prosecutor Denise Robinson immediately objected to the question, and the judge sustained the objection.
Shircliff then asked, “To your knowledge, did Gary Rees take any notes of his conversation with Brian Reese?”
“No, other than his letter.”
“Were there other people in the holding cell when Brian Reese talked to Gary Rees?”
“Yes.”
The defense then presented evidence to show that there were nine other prisoners in that holding cell.
“Did you contact any of these other nine prisoners?” Shircliff asked.
“No.”
Shircliff then asked about Gary Rees’s claims that Brian had said his dad might take the rap for shooting the cop. Breedlove responded that this wasn’t what Rees was talking about when he spoke about Brian’s father taking the blame. The judge stopped the testimony and had the jurors removed from the courtroom. The judge and the attorneys then talked about several recorded jail telephone calls in which Brian had talked about having his father take the rap for the three murders “because he was sixty-some years old and didn’t have anything to lose.” The defense, of course, didn’t want this information to come out, because a jury is not supposed to hear about any other crimes a defendant may be involved in.
After the jury returned, Shircliff moved on to another subject, trying to find holes in Gary Rees’s story because Rees had claimed that Brian told him that the first shot spun the officer around and the second shot struck the officer in the back of the head. (Actually, Fishburn had been shot with his head facing forward.) However, he didn’t have much luck getting Breedlove to concede anything. Finally, Shircliff asked Detective Sergeant Breedlove if Officers Scott and Wood had had their weapons taken away because they’d been involved in the shooting of Brian Reese. After Breedlove answered yes, the defense attorney sat down.
Following Breedlove’s testimony, deputy prosecutor Denise Robinson stood up and said that the State rested its case.
Now it was the defense’s turn. Once the prosecution had rested its case, the defense had to begin its portion of the trial. They hoped to be able to present evidence that would mitigate the shooting. The defense wanted the jury to see the shooting as tragic, but unintentional. Shircliff and his team weren’t going to attempt to convince the jury that Brian was totally innocent, but rather that he had made a terrible mistake that day by shooting in the direction of Officer Fishburn. They wanted the jury to believe that Brian had never intended the consequences of what had happened.
They had a huge task in front of them.
TEN
The first witness called to testify by the defense on November 9, 2009, would be Officer Brian Mack. He told the court that he worked for the Indianapolis Metropolitan Police Department, and that in July 2008 he worked on the same shift and district as Officer Fishburn.
“Did you lose your badge that night on Euclid Avenue?” the defense asked.
“Yes.”
“Was it returned to you by the defense attorney?”
“Yes.”
“Do you know how many rounds Officer Fishburn carried in his Glock Model 22?”
“Sixteen.”
The defense then turned Officer Mack over to Mark Hollingsworth of the prosecution for cross-examination.
“Do you know how many rounds Fishburn carried in his Glock Model 22 on July 10, 2008?”
Officer Mack answered no, not positively, and then went on to explain that there were pluses and minuses to carrying sixteen rounds as compared to fifteen in a Model 22 (carrying sixteen will sometimes weaken the spring in the magazine), and that he and Fishburn had talked about it, and Fishburn said he felt better with sixteen.
When Hollingsworth finished, the judge excused Officer Mack, and the defense next called Dan Bailey to the witness stand. After being sworn in, Mr. Bailey told the court that he worked as a paralegal for the Public Defender’s Office. He told the court that he had been sent to the 800 block of North Euclid Avenue as an investigator for the Public Defender’s Office. He said he used a metal detector but didn’t find
anything he would consider as evidence, only the police officer’s lost badge. He then talked about the crime scene and how he had been there at least a half dozen times.
“Did you find any bullet casings or bullet strikes not already found?” the defense asked him.
“No.”
The defense then turned him over to the prosecution for cross-examination, but the prosecution said it had no questions. The judge, however, told Mr. Bailey that the jury did have some questions.
“What area did you use the metal detector on?” one of the jurors had wanted to know.
“The area where Jason had been and the surrounding area.”
“Do you have any professional training in the use of metal detectors?”
“No.”
“Had you ever used a metal detector before?”
“No.”
Following these jury questions, the defense then asked to put into evidence a video taken in October 2009 of the 800 block of North Euclid Avenue. The State had no objection.
After Mr. Bailey stepped down from the witness box, the defense next called Detective Sergeant Jeff Breedlove to testify. The defense showed him a video of the 800 block of North Euclid Avenue and asked him to tell the court the significance of a piece of white tape that had been placed on a fence.
“It was where a shell casing had been located,” Breedlove answered.
The defense thanked him, and the judge, upon seeing that the prosecution had no cross-examination, told the defense to present its next witness.
The defense called Brian Reese to the witness stand.
Of course, it is always a gamble for a defense attorney to put a defendant on the stand—whatever benefits may come for the defense, the prosecution can do untold damage during cross-examination. However, Shircliff apparently felt that it was worth the risk in order for the jury to hear Brian’s side of the story. After all, they’d already heard the prosecution’s side, and if they went into the jury room with only that information, the results could easily be disastrous.
After the bailiff swore Brian in, Shircliff asked him, “Mr. Reese, Brian, we’ve already heard that the State is saying that you intentionally tried to kill Jason Fishburn. Is that true?”
“Yes.”
“You—”
“I heard that,” Brian added quickly.
“Did you intentionally try to kill Jason Fishburn?” Shircliff asked.
“No.”
“Prior to or on the day of July 10, 2008, did you use any crack cocaine?”
“Yes.”
“Can you tell the jury how much you think you used?”
“A lot, a couple of eight balls” (i.e., about 3.5 grams).
“Who were you smoking crack with?”
“With my girlfriend and my dad.”
Brian then told the court that he had smoked crack all of July 9, 2008, through the night, and the next morning. He said his dad left for a bit but returned at about 9:00 or 10:00 A.M., and brought some more crack cocaine.
The defense then asked, “Would you say at that point in time you were or weren’t addicted to crack cocaine?”
“I was addicted. I’d been smoking it for like nine years.”
Brian then told the court that he, his dad, and his girlfriend, Lona, had smoked all the crack his dad had brought, and after this he and his dad were getting ready to go to a local gas station. He then talked about stepping out the door, seeing the police officers, running back into the house, and jumping out the window. When the defense asked why he had run, he said that there was a warrant out on him for a theft and forgery charge that he hadn’t shown up to court for. He then went on to tell the jurors about fleeing from the police and how everywhere he ran he saw officers, and how he finally hid in a burned-out, abandoned house for several hours.
“Why do you think they were still chasing you at that point?” Shircliff asked.
“Because I was running around with a gun in my hand.”
Following this, Brian explained how he’d gotten a trash bag and put some cans and junk in it, changed clothes, rubbed soot all over himself, and then walked out of the neighborhood disguised as a homeless person. He said that a man in an SUV pulled up and gave him $5.00, and said, “Looks like you could use this.”
Once out of the neighborhood, Brian said, he went to the house of a man named Billy Joe, who was a cousin of his girlfriend. He had Billy Joe call Lona’s house to see what was going on. After this, Brian had Billy Joe drive him back over to the area of 215 North Hamilton so that he could see what was going on. While they were there, Billy Joe told him that the cops were coming, so Brian said he jumped out of Billy Joe’s truck and hid. Billy Joe took off. Brian said he then got the revolver back from where he had hidden it in a trash can and walked back to Billy Joe’s house, but he wasn’t there. Brian then bought $10.00 worth of crack from a dealer nearby and started walking toward his mom’s house on Bosart Street. After a few blocks, he stopped at a variety store, used the telephone, and called his mother and asked her to come pick him up. When she did, he told her he wanted to go to his brother’s house, but his mom said she had to take some groceries home first, so she dropped him off at Little Flower Catholic Church while she went home.
When the defense attorney asked why she had dropped him off there, Brian said, “She lives with her boyfriend and none of us kids get along with him, and it starts a lot of problems with my mom and him and us, so I don’t go over there really. I stay away when he’s there.”
Brian then told the court about the police trying to stop them after his mom picked him up in the van. He also told about jumping out of the van and running and how he saw a police officer right behind him. Brian said he heard the Taser make a crackling sound behind him and claimed that when he ran between the houses on Euclid Avenue he heard someone shoot at him.
“And what did you do then?” Shircliff asked.
“About middle way between the two houses I shot three times over my shoulder.”
“And when you shot three times, did you look back?”
“No.”
“Do you know if you hit anybody?”
“No.”
Brian then claimed that he ran back out onto Euclid Avenue but never pointed his gun at anyone. He next told about being shot and falling down next to the house. When Brian finished his story, the defense then turned him over to the prosecution for cross-examination.
“I was sitting there shaking my head, thinking I couldn’t believe they expect the jury to believe this garbage,” said Jason’s father, Dennis Fishburn. “Reese took the stand and said he wasn’t trying to shoot a police officer when he was running, he just shot over his shoulder without looking back. I wondered why he hadn’t hurt his eardrum.” Dennis also wasn’t impressed with Brian’s lack of emotion during the trial. “Reese was real nonchalant during the trial, like nothing serious was happening. Just kept a straight face most of the time. I never saw much change in his facial expression.”
Marion County prosecutor Carl Brizzi had hoped that Shircliff would put Brian on the stand. “We would welcome the opportunity to chat with Brian Reese,” he told the news media.
Brizzi started off the cross-examination of Brian by going over his testimony. Brian claimed he forgot that he even had the gun on him, and only remembered it when it almost fell out when he went over the guardrail. He said the gun belonged to his father and he only took it because he didn’t want to get Lona or her mother in trouble by leaving it there. He also claimed that he didn’t know a police officer was right behind him when he fired the shots, but just shot over his shoulder in the hope that the gunfire would scare anyone from chasing him.
“Well, if that’s what you want the jury to believe,” Brizzi asked, “why didn’t you shoot the gun up in the air?”
“I don’t know,” Brian responded. “I could have done th
at.”
“You could have shot into the ground, couldn’t you?”
“You’re right.”
“You could have shot the buildings; you could have shot the houses on either side, couldn’t you?”
“I could have.”
“But you didn’t!” Brizzi said with emphasis.
“No.”
Judge Borges then said that she had a question from one of the jurors. “Did you or do you have any hearing loss in your left ear?”
“No.”
The defense then posed a few more questions on redirect examination to Brian but didn’t bring up anything significant.
On recross examination, Brizzi had Brian retell the story about meeting Gary Rees. Brian admitted telling him everything Rees said he had told him, except the part about saying he’d shot the officer intentionally. Brizzi kept hammering Brian with questions about what he’d testified to, and Brian became flustered and said, “You’re turning things around and I’m confused now.”
Brizzi apparently wanted the jury to think that Brian’s whole testimony was confused, so he ended his recross. Once Brizzi had finished with his questioning of Brian, the defense said that it rested its case, and the judge ended the testimony for the day.
The next morning, November 10, 2009, the prosecution recalled Lona Bishop to the witness stand as a rebuttal witness. After Lona received the admonishment that she was still under oath, deputy prosecutor Denise Robinson asked her if she and Brian had, as he’d testified to, smoked two eight balls on July 9, 2008. She said no because those cost $150.00 each. They didn’t have the money.
“If you had had the money for it,” Robinson asked, “would you have smoked it?”
“Yes.”
Earlier, Brian had testified that the .38 caliber revolver he carried had belonged to his father, so Robinson asked Lona, “Can you tell the court when you saw that gun?”
“July 10th and July 9th.”
“Where?”
“At my house.”
“And who,” Robinson asked, “had that gun?”