The First Juror’s Hand


Exson Dimanche  may have been crazy, but he wasn’t nuts, and he sure as hell had had enough. It was as if there were a sudden crystallization in his mind that it was no way in his best interests to be sitting in that chair answering those questions. And so he began punctuating each of the state attorney’s next eight questions with an emphatic, “No!”, “No!”, “No!”, “No!”, “No!”, “No!”, “No!”, “No!”, “No!”, and finally, to her question regarding the defendant, “I never saw’m before.”

The entire spectacle of the State’s examination of Exson Dimanche was, as the defense later described it in their closing argument, “A debacle.” It started out badly, rapidly degenerated into muddled incoherence, climaxed at the brink of threats and imminent violence in the courtroom against the judge and ended with Exson’s above repudiation of the whole proceedings. It then featured a postscript of farce and unintended perspicuity.

When called by the prosecution, Exson entered through the door at the back of the courtroom, traversed the spectators’ section of four oak benches on his left and four on his right, and passed through its gate into the courtroom proper. Still bearing an adolescent body—though likely in his mid-twenties—he looked about five-ten and maybe 140 pounds fully clothed and dripping wet. Moving in fits and starts—including some sidewise action—clearly, something was amiss.

Approaching the clerk’s desk—which sprawled across the base of the judge’s bench—Exson veered right, as though instinctively heading to the witness box. But this was not how things were done in Judge Richard Ehrlich’s courtroom: the witness is sworn-in in front of the clerk’s desk, not in the witness box. And while it might seem like an innocent mistake by Exson, Judge Ehrlich barked at him to stop, move back in front of the clerk’s desk and raise his right hand. For Judge Ehrlich, who up to this point in the trial had evinced nothing but exemplary politeness and good-natured equanimity, this outburst was altogether out of character: it seemed Exson’s refractory dyskinesia had unsettled the judge’s sense of order in his court, and he would have none of it.

Once safely sworn in and sitting in the witness box it became easier to take the full measure of Exson. As his name suggested, he looked Haitian: velvety jet complexion, narrow face with elegant rounded features and full lips crowned with a thin almost imperceptible pubescent mustache. It also became apparent even the simplest questions could challenge him. When asked by Assistant Florida State Attorney Elaine O’Keeffe, the lead prosecutor, to state and spell his name, he raised his nose slightly along with his gaze, paused—as if to negotiate through some intricate mental landscape—then looked back at her to answer in a nasal toned staccato street accent, tinged with defiance. Exson may have come from recent Haitian immigrants, but he had assimilated completely into his new culture: his speech and mannerisms were urban African-American youth.

Ms. O’Keeffe stepped out in front of the witness box and extended a winsome smile, “Is it okay if I call you Exson?”

“Sure,” Exson requited with his spontaneous smile, white teeth flashing against black skin.

“Have you ever been told that you suffer from schizophrenia, Exson?”


“A doctor has never told you that?”


“They told you that?”

Exson nodded.

“You Have to say yes or no out-loud,” Ms. O’Keeffe said gently. “Sorry.”

“They told me that.”

“Do you take any medication for that?”


“Are you taking your medication now?”


“Why not?”

“Because I finished.”

A schizophrenic off his meds: yes, that could certainly explain what followed. And this brief exchange would, in retrospect, provide nearly the last coherent moment of Exson Dimanche’s testimony on Wednesday, November 30th, 2016, in the second-degree murder trial of Marcelyn Toussaint—nearly.

Exson was her star witness, but beyond that, Ms. O’Keeffe’s affinity for him felt much more elemental—personal, protective, caring. She accorded him utter forbearance and coddled him with a kind, almost maternal smile—as though he were the prosecution’s baby. She had also presaged his arrival, when, during jury selection, she asked prospective jurors if (hypothetically, of course) they could accept and objectively assess the testimony of a person with mental illness. Although it wasn’t clear even from the outset whether Exson would reciprocate her tenderness. Would he be a compliant witness? Were his difficulties entirely cognitive, or perhaps some intentional untoward impulse?

When asked about where he had lived, Exson was unwilling to admit anywhere other than his current address in Winter Haven, Florida: some 200 miles north of Miami Gardens, where the murder occurred the fateful Saturday afternoon of June 25th, 2011. Ms. O’Keeffe just let that slide—moving along as if the point weren’t important.

“Was there a time that you visited Miami in approximately June two thousand eleven, Exson?”


“Okay, who were you staying with?”


“Was that in Miami Gardens?”


“Now, I want to talk to you about June two thousand eleven. Do you know somebody by the name of E-Class or Eric?”


“How do you know him?”

“We used to smoke weed together.”

“Does he also do tattoos?”

Exson nodded, “Uh-huh.”

“That a yes?”


“Has he done a tattoo for you?”


“Did you reach out to him about purchasing weed in June two thousand eleven?”


“Was the weed for you or for someone else?”

“Somebody else.”

Ms. O’Keeffe next questioned Exson about five texts he exchanged with Eric Galvez on Friday, June 24th, the day before the murder. Defense co-counsel Geoffroy Stern saw matters differently. He began objecting. Nonstop. Or thereabouts.

This too was prefigured during jury selection when lead defense counsel Andrew Rosen took time to make the somewhat odd point that jurors should not be offended or adversely affected by an attorney’s objections during a witness’s testimony: objections ensure proper legal procedures are followed, so the defendant receives a fair trial.

It’s all about fairness. And proper legal procedures. Got it?

Copies of the texts were projected on a large flat screen monitor just to Ms. O’Keeffe’s right for Exson and the jury to see as she stood at her podium about eight feet in front of him.

She adjusted the monitor, “It's a little far. Are you going to be able to see it if I show it up there?”

Exson shrugged, “It makes no difference to me.”

“All right, I see a first text message. It says Exson from 306-645-2837. Was that you texting Eric Galvez, or E-Class, to buy some weed?”

Mr. Stern sprang to his feet and put a stop to it all, “Ob-jection!” His act was indignant, loud and brazen: calling attention to itself and himself and away from all else. Every eye curiously attended his demand. Inexplicably, he just stood there, inert, with an absurd blank expression, for what seemed like an exorbitant length of time. He then began to survey the courtroom—looking first to his left, then to his right—apparently without an inkling as to what might happen next.

Judge Ehrlich pivoted his chair to face him and waited. And then he waited some more—as though joined in a battle of wills, albeit with a perfectly placid cast. . . . Finally, with deference, he ask, “Grounds?”

Mr. Stern flinched, snapped his gaze to the judge, scrunched his brow, and after a moment or two, and almost as a question, said, “Leading.”


Mr. Stern sank back into his chair.

Ms. O’Keeffe moved out in front of her podium , “Was that you texting E-Class, to buy some weed?”


“You asked E-Class for Kali or Kush, what does that mean?”


“Now, you mentioned that the weed was for someone else. The person that it was for, did you know him well?”


“Did he live across the street from your cousin?”

Mr. Stern launched up out of his seat, “Ob-jection!” Again, he first stood motionless—stupidly impudent—as he absorbed the courtroom’s attention. And then, again, he began his languid review of the room, looking to his left, then his right.

Judge Ehrlich swiveled toward him, and—after enduring several seconds of the peculiar pause—ask, “Grounds?"

Mr. Stern cocked his head to the side as though it never occurred to him such a question could be ask, and—after taking a moment or so to gather his thoughts—ventured, “Leading?”

Judge Ehrlich, dispassionately, “Overruled.”

Mr. Stern slid back onto his seat.

“Did the person that the weed was for live across the street from your cousin?”


“You weren't there when the weed was bought, right?”

Exson shook his head, “Uh-uh.”

Ob-jection!” Mr. Stern’s straightening legs shoved his chair back across the floor with a noisy crack. First standing statuelike for some immoderate spell, chin raised—accentuating his full beard, shaven pate and feckless countenance—he then began wandering his gaze side to side across the courtroom, once again, as though he couldn’t possibly anticipate the Judge’s next question.

Judge Ehrlich pirouetted to face him, and, after waiting the requisite several seconds, and, without a hint of annoyance, ask, “Grounds?

Mr. Stern, implacably, “Leading?”

Judge Ehrlich, imperturbably, “Overruled.”

Mr. Stern sat down, woefully.

“You weren't there to buy the weed?”

“I wasn't there to buy the weed, no.”

“You didn't meet up with E-Class?”


“After the weed was purchased, did you see the guy who purchased the weed again?”

Ob-jection!” The defense counsel maintained his ruse: standing ridiculously still for much too long, then casually perusing the room—left to right—as though he too were vexed by the ensuing quiet.

Judge Ehrlich, again swinging toward him, and again waiting patiently, and then—as if it were all the most mundane occurrence that happened just about every day in his courtroom—asking, once again, “Grounds?”

“Leading?” Mr. Stern hazarded with a hopeful affirmative nod.

Indefatigably, “Overruled.”

“I’ll repeat the question. Did you see the guy who purchased the weed again?”

Exson widened his eyes and raised his eyebrows, “Huh?”

Ms. O’Keeffe furrowed her brow and lowered her eyes, blinking several times as she started off slowly, “Let me ask this . . . the guy who you were texting for the weed . . . the guy you were texting about . . .” She looked back at Exson and sped up as she hit her stride, “Who lived across the street from your cousin—okay—that wanted the weed, was he a white guy or black guy? The guy who wanted the weed?”

Mr. Stern, up out of his chair, “Ob-jection!”—standing still, glancing side to side, et cetera.

Judge Ehrlich, rotating, forbearing, steadfast in his refusal to be provoked, “Grounds?”

Mr. Stern, feigning surprise and so forth. Then, trying a new angle, he chanced, “Improper question?”


“The guy you were texting about, that wanted the weed, was he a white guy or black guy?”

Black guy.”

“Did you see him after he bought the weed?”


Ms. O’Keeffe tilted her head to the side.

Both Mr. Rosen and Mr. Stern straightened in their seats. Mr. Stern picked up his pen and began writing on a large yellow pad to his right as Mr. Rosen leaned to his right and whispered into Marcelyn Toussaint’s ear—making his eyes dance and eliciting a single sharp nod.

Having established the texts’ provenance and purpose, Ms. O’Keeffe moved along to her next concern: focusing Exson’s testimony on an event taking place sometime later. This is where things really started falling apart. For whatever arcane technicalities known only to those initiated in the dark legal arts, Ms. O’Keeffe’s next several questions stopped surviving defense counsel’s objections. But not before two questions slipped by, ask and answered.

Shifting back from Marcelyn, Mr. Rosen caught sight of Mr. Stern’s movement, turned his head left, then crooked it sideways to read the writing.

“Did the black guy tell you what happened when he met up with E-Class?”

“They was trying to rob each other.”

Mr. Rosen tapped his forefinger thrice on Mr. Stern’s yellow pad—distracting them each just long enough to let the second question and answer also lapse.

“And what happened?”

“Somebody got shot in the head.”

Waves of shock, then consternation roiled across the defense counsels’ faces as they hurtled from their chairs, each yelping, “Objection!”

Judge Ehrlich whirled toward them while saying, “Only one counsel, plea—”

“Hearsay!” Mr. Stern lurched forward to catch his balance.

Ms. O’Keeffe looked to the judge and nonchalantly remarked, “It's the defendant's statement.”


Mr. Rosen, “Move to strike, Your Honor,” his aspect, pained, his voice echoing the tremulous whimper of a toddler who had not yet mastered emotional control.

Judge Ehrlich swiveled himself to address the jury and said, with an affable vivacity, “I ask the jury to disregard the last question and answer.”

As if.

Meanwhile, Judge Ehrlich, by this time having endured perhaps a half dozen or so of Mr. Stern’s fractured objections, finally decided to admonished him—to the extent he seemed capable of admonishing anyone other than Exson Dimanche. Upon Mr. Stern’s next blusterous objection followed by silence, Judge Ehrlich—in his consummate equable manner—merely said what no doubt any rookie lawyer knows: “After you say objection, the next words you say are the grounds for the objection.”

While this did speed things up a bit, it was far too little and far too late to change the course of Ms. O’Keeffe’s examination of Exson, as the proceedings were spiraling into delirium. First, each time an objection was sustained, she would reformulate the question into a more convoluted and less intelligible form; often looking down and blinking—as though recollecting back to her legal training—while recasting her question into a quietly and quickly spoken jumble of thought rather than a public pronouncement. Also, she could not establish a line of examination: after objections to her questions were sustained two or three consecutive times, she would abandon the line of questioning and try another approach. Thus, there was no sense of continuity to the testimony, much less a raison d'être. Moreover, once her questions began withstanding defense objections again, Exson had become adverse: his testimony didn’t jibe with statements he gave police three years earlier, or even with answers he gave in a deposition just a few weeks ago.

Yet she persisted.

“Exson, did you see the black guy—did you see the black guy with a white guy at some point?”

“Objection, asked and answered.”


Exson, “No.”

“Did you see him with another white guy?”


“You didn't see him with the guy with the white Pontiac?”

Mr. Rosen and Mr. Stern jumped up, “Objection!” Mr. Stern finished, “Asked and answered.”

“Only one counsel, please. Overruled.”

“Did you see him with someone who drove a white Pontiac?”


“Hang on one second, Exson.” She turned, stepped behind the podium, grabbed a folder and looked up at Judge Ehrlich, “May I approach the witness, Your Honor?”

“You may.”

She started toward the witness box and said, “I'm going to show you a copy of your deposition, Exson, so you can refresh your memory, okay?”

Mr. Stern barely lifted his hindquarters from the chair, “Objection, improper recollection refreshed,” then sat back down.


Her second attempt was no more fruitful, “E-Class, is there something that would help you refresh your memory?” She got Exson’s name wrong, but it mattered not because—

Again, scarcely rising from his seat, “Objection, nonresponsive and improper recollection refreshed.”


Trying a fresh tack, she mutilated the question, “Exson, do you remember telling me that the person that you saw the black guy with another white guy who drove a Pontiac Grand Prix?”


Without seeming to grasp the question’s flaw, Mr. Stern popped up from his seat, “Objection!”


“The form of the question, improper.”

More like: the form of the question, incomprehensible?


At last, getting her question right, “Do you remember telling me that the black guy was with a white guy who drove a white Pontiac Grand Prix?”

“Objection, asked and answered!”


“No,” Exson refused.

Ms. O’Keeffe’s posture straightened and face muscles tightened. “Exson, do you remember giving a deposition in this case?”

“What's a deposition?”

“So, I was there. I came to Winter Haven, and Mr. Stern was on a computer and you gave a statement about what happened and what you saw?”


“Do you remember that?”


“May I approach, Judge?”


"So, I'm going to show you a portion of that deposition.” She placed it before Exson and pointed at the text, “And if you could just read it over, and when you are done, let me know,” then glanced over her shoulder at the defense table, “I'm going to direct defense counsel to page forty-five starting at line twenty—”

Mr. Stern, started leafing through his copy, “Line what?”

“Twenty to the rest of the page. Twenty to twenty-five.”

Exson, “He said—"

“Read it to yourself first, sorry.”

After a short while Exson looked up, “Yeah, I said that.”

“Do you remember saying that the black guy was with the white guy in the Pontiac Grand Prix?”

Exson relented, “Yeah.”

She gathered the folder from him and walked back to the podium. “Now, at some point after June two thousand eleven, the police came to see you in Winter Haven, right?”


Next, Ms. O’Keeffe introduced into evidence two documents. First, she carried the them across the courtroom to the defense table, “I'm showing defense counsel what's been marked as State's Exhibit 2W and 2X for identification.” Then, starting back toward the witness box, “May I approach, Judge?”

“You May.”

“Exson, I'm going to show you what's been marked as State's Exhibit 2W for identification, okay?” She handed it to him, “You have seen this before?”


“Is that your signature on the first page of this document?”


“Is that a fair and accurate depiction of what police showed you?”


She took it from him and gave it to the clerk, “At this time the state moves into evidence what's been marked as 2W for identification.”

Mr. Rosen, “Previously-noted objection.”

Judge Ehrlich, “Preserved. Admitted.”

The clerk marked it, said, “State's 2W is now State's Exhibit 42,” and returned it to Ms. O’Keeffe.

Ms. O’Keeffe turned back to Exson, “Showing you also 2X—what's been marked as 2X for identification, is that also your signature there?”


“Right here on the first page?”


“Is this also a document that police showed to you?”


She took it from him and handed it to the clerk, “At this time the state moves into evidence what's been previously marked as 2X for identification.”

Judge Ehrlich, “Defense?”

“No objection.”


Marking it, the clerk said, “State’s 2X is now State's Exhibit 43.” 

Ms. O’Keeffe collected it from the clerk, walked over to the monitor and placed the two pages of the first document, State's Exhibit 42, under the camera beneath it. Its second page was six photos of young adult black males. Marcelyn Toussaint’s photo was circled.

“So, Exson, the police came to Winter Haven—and just so the jury sees—this is what you said . . .”—she turned to the monitor and pointed at the bottom of the first page—“this was your signature.” Looking back at Exson, she bobbed her head, “Correct?”


“And they asked you who you set up the drug-deal with—with E-Class”—dipping her head again—“right?”

“Objection, calls for hearsay.”

“Whether they asked him, does not. Overruled.”

“They asked you who you set up the drug-deal with—with E-Class?” Then immediately trying to improve her question, “Who was the guy you sent to meet up with E-Class?”

Exson pinched his eyebrows together with a slight squint, “I don't understand the question.”

“I'll ask again.” She dropped her gaze and blinked a few times, “Did they ask you—” Her eyes flashed back at Exson, “Did they ask you to identify the person who you sent to buy weed from E-Class?” Nodding at him, “Right?”

“I still don't understand.”

She looked down and pulled the right edge of her lower lip between her teeth for an instant, then said—half to herself, “Let’s think of a different way to ask you.” She turned to the monitor and pointed at the lineup’s second page, “They showed you these photographs and you circled this person,” then looked back at him and nodded, “Right?”

Exson ducked his head while slowly saying, “I did.”

“Okay, and you told them that was the person who was sent to buy drugs from E-Class?”

“Correct,” stretching the word out and dipping his head for emphasis.

Mr. Stern, “Objection.”


“Form of the question and leading.”

She promptly revamped her question, “Who did you tell them this person was?”

“Who?” Exson’s semblance of confusion was unconvincing—his eyes too wide open, his expression too extravagant, his mien, wily.

“The person that you circled, who did you tell them that it was?”

“I don't understand.”

Like a mother unwilling to think anything less than the best of her child, Ms. O’Keeffe blamed herself for Exson’s discord and took yet another stab at the question, “Did you tell them whether he was the person who purchased weed from E-Class on June two thousand eleven?”

“Objection, leading.”


“Did you tell them . . .” she lowered her eyes and blinked several times, “. . . not the name . . .” then looked back at Exson and quickly said, “Did you tell them what this person did?”

“Same objection.”

Judge Ehrlich raised his pencil in the air, “Wait, wait—”

Ms. O’Keeffe looked up at him, “I'll ask it a different way, Judge.”

He put his pencil back down, “Okay, please do.”

“I just want to point you to the first page. It says, ‘I selected photo number five as the person who was the shooter,’ right?” Looking back at Exson she lifted her brow and dipped her head, “Can you read that?”


"I have selected photo five as the person who was shooter?”

With deliberate caution, Exson said, “Uh-huh.”

“Why did you say he was the shooter? Did he tell you that he had shot at Eric Galvez and Evani?”



“—to the form of the question and leading.”

Exson, “I can't remember.”

“That will be sustained.”

“I was only there for a few days,” Exson entreated her, “I can't remember anything.”

“So, would seeing a copy of your deposition help you?”

“Yeah, it would actually.”

Ms. O’Keeffe began leafing through her copy, “I'm going to refer you to page thirty-six—all right? I'm going to start with line five and going to thirteen—okay?” She looked up at the judge, “May I approach, Your Honor?”

“You may.”

She placed it before Exson and pointed at the text, “Just read over five to thirteen to yourself.”

After a few seconds he looked up.

“Are you finished reading?”

“I'm finished.”

She took the folder from him and went back to the podium. “Okay, was this the black guy”—pointing at Marcelyn’s circled photo on the monitor—"that you sent to meet up with E-Class in June of two thousand eleven? Did you tell the police that?”

“I circled it.”

“Okay, did they tell you to circle it or you circled it on your own?”

“I circled it on my own; it doesn't mean I know that's the person.”

“You said he looked familiar?”

“Looked familiar? I had to circle one of the above or I was gonna get arrested.”

“For what?”

“I just circled somethin’.”

“So, they told you were going to get arrested?”

“It don't look like the guy though”

“I'm going to remind you—”

Exson cut in, “Still got me in here.”

Ms. O’Keeffe stood still for a moment—expression blank—looking at Exson but not really looking at him. . . .

An infinitesimal flick of her head returned her to the nonce, “One second, Exson.” She looked down, picked up the deposition and flipped through it until she found her place. “Do you remember I asked you if the person that you circled, ‘Is that the person that you saw in the yard with the white guy the day of the shooting,’ and you said—"

Mr. Rosen stood up, “Objection, Judge. Improper recollection refreshed.”

Judge Ehrlich looked over at him, “I don't think that's what she's doing. I think she's reading a prior inconsistent statement.”

She continued to Exson, “I said, ‘Is that a yes?’ And you said, ‘Yeah.’ I said, ‘Is that the person who told you about what happened with E-Class and the shooting?’  And you said, ‘It could have been the white guy—’”

Judge Ehrlich, “Ma'am, limit it to the statements that you are impeaching him with.”

She looked up at him with a simple blithe smile, “Sure,” then turned to Exson, “I said, ‘Is that the guy—’”

Mr. Stern, “Objection.”

“Ma'am—" Judge Ehrlich motioned Ms. O’Keeffe, her co-counsel, Assistant State Attorney Jorgina Bartlett, Mr. Rosen and Mr. Stern to the right side of his bench.

After a minute or so, when they finished, Ms. O’Keeffe walked back to the podium and reopened the folder, “Referring to page fifty-four—sorry—the bottom of fifty-three and the top of fifty-four of your deposition.” Still looking down, “I just want to be clear—first . . .” Then flipping back-and-forth between two pages and eventually looking up at Exson, “The photo that you circled for the police, is that the guy who called you over and told you what happened on the day of the shooting with E-Class?”


Mr. Stern, “The same objection.”

“Overruled. Go ahead.”

Contributing her part to the chaos, Ms. O’Keeffe mangled the next question, “I'll ask again. The guy who you circled, is that the guy who called you over and told you what happened when you met up with E-Class?” She presumably meant, “. . . is that the guy who called you over and told you what happened when he met up with E-Class?”

Not passing up an opportunity to compound the bedlam, Mr. Stern leapt to his feet, “Objection, asked and answered.”  


“No.” Exson may have inadvertently answered the wrong question accurately, although in the midst of the burgeoning pandemonium, this—like most everything else—wasn’t exactly clear.

“Do you remember giving a deposition you talked about earlier?”

Exson nodded, “Uh-huh.”

Yes?” she helpfully reminded him. “You have to say it out loud.”


“And just so I don't have to read the whole thing . . .” she reopened the folder, “We are talking about the photo that you circled . . .” then found her place, “and I asked you, ‘I'm asking you if that's the guy—'"

Mr. Stern stood and cut her off, “Objection, improper impeachment.”

Judge Ehrlich, “Can I have a copy of that statement please?”

“Sure.” Ms. O’Keeffe walked over to the State’s table, received a copy of the deposition from Ms. Bartlett, handed it to the clerk—who passed it up to the judge—then headed back to the podium.

Judge Ehrlich began thumbing through the pages, “Page and line?”

Banding a page to and fro, Ms. O’Keeffe said, “The bottom of fifty-three to the top of fifty-four, starting on line twenty-three of fifty-three.”

After a moment, he ask, “I'm on page fifty-three. What line please?”

“Twenty-one and it goes on to fifty-four until fifteen.”

Mr. Stern, scrutinizing his copy, “I'd ask for line eighteen on page fifty-four.”

Ms. O’Keeffe, “Okay, that's fine.”

Still fumbling with his document, Judge Ehrlich said, “Alright . . . okay . . . that will be . . . the portions indicated on fifty-three and fifty-four—would be appropriate impeachment. You may go forward. However, you have a ninety one-oh-eight completeness.”

Ms. O’Keeffe turned back toward Exson and looked down at the deposition, “I asked you, ‘The guy who called you over, that was the guy who you circled for the police?’ There was an objection and I asked again, ‘That's the guy you circled for the police? This is my last question, the guy who called you over—that's the guy who called you over and told you what happened?’ And you said, ‘That told me what happened.’ If it's okay with Mr. Stern, I'll skip the next two lines.”


“I said, ‘Is that your answer?’ And you said, ‘Yeah, he told me what happened.’ And I said, ‘Okay, I don't have any other questions.’ And then you said, ‘He didn't say he killed anybody.’ And then I said, ‘Okay, I have some more questions—'”

Mr. Stern cut in, “Objection—”


“—beyond the impeachment.”

Judge Ehrlich, “Agreed.”

Ms. O’Keeffe, “Just the first sentence.”

Mr. Stern, “Line sixteen.”

“All right. Overruled. Go ahead.”

“I said, ‘I have some more questions.’ And you said, ‘He just said the guy pulled a gun out on him.’” She looked up at Exson, “Do you remember saying that?”

Exson nodded, “Uh-huh.”

“Is that a Yes"?


“So, the guy you circled is the guy who told you about a robbery going down with E-Class on June twenty-fifth, two thousand eleven, right?”


Bewilderment infused the prosecutor’s face as she canted her head askew, “Why did you circle him?”

“I thought that was the person.”

Ms. O’Keeffe paused—staring ahead—and blinked once . . . twice . . . and then a third time. . . . She looked down and began sifting through the papers before her while saying, “Okay, I'm going to refer to your two thousand thirteen statement to the police. I have a transcript of that statement and I'm going to refer to—”

Judge Ehrlich, “I need a copy please.”

Mr. Rosen stood, “Judge, we don't have a transcript. We were given a disk. We don't have a transcript.”

Ms. O’Keeffe looked over at him, “Just so the record is clear, that was provided in discovery along with everything else in March of this year. It actually says, Transcription of Exson Dimanche’s statement.”

Mr. Rosen, “I don't have it.”

Judge Ehrlich, to Ms. O’Keeffe, “Sorry to run through your examination like this.”

She walked over to the State’s table, where Ms. Bartlett miraculously produced two copies of the statement. Ms. O’Keeffe handed one to Mr. Stern at the defense table and the second to the clerk, who passed it up to the judge.

Judge Ehrlich, “Go ahead, Ms. O’Keeffe.”

“Exson, do you remember telling the police, that this is the person who shot—"

“Page?” Mr. Stern waved his copy.

“I haven't asked," she said coolly. “Exson, do you remember telling the police that this is the person,”—she pointed at Marcelyn Toussaint’s circled picture on the monitor—"who had told you he was the shooter?”

Mr. Stern sprang to his feet, “Objection, asked and answered.”


Exson, “That's what I said, but I'm not sure if that's the person. I circled when I circled, but nowmy judgment—I gotta whole different concept. I don't see the person.”

“This was back in two thousand thirteen, right?” Ms. O’Keeffe turned to the monitor, “I'll show you here—”

Exson crumpled his face, “I thought it was eleven.”

She pointed at the date on the first page of the lineup, “November two thousand thirteen.”

“I thought it was two thousand eleven.”

She walked out in front of the podium, looked back at the monitor and pointed again at Marcelyn’s photo, “Do you remember telling the police that's the shooter?”

“Yeah,” he muttered.

She looked back at him, “Loud, yes or no?”

“I was thinkin’ about somethin’ else. You said two thousand eleven.”

Again, she pointed at the Marcelyn’s photo, “Do you remember telling the police this is the person—now that you are in two thousand sixteen—do you remember telling the police this is the person who you said was the shooter?”

“I circled it, but I don't feel like that's the person.”

“My question for you is did you tell police that that was the shooter?”

“Like I said—I circled, and I don't feel like that's the same person. I answered—I didn't question, I just answered you purely.”

Pointing at the monitor yet again, she ask, “Do you remember telling the police that that was the shooter?”


She turned, walked back behind the podium and began sorting through a folder. “You gave a statement to the police, and that was right along with this picture in November of two thousand thirteen”—lifting her right hand at the monitor while continuing to look down—“and you were asked—this is page twenty-five of the third part of that transcript—and you were asked, ‘Who is that?’ And you said, ‘That's the one.’ And they said, ‘The one what?’ And you said, ‘He looks younger in this picture but that's him. That's the shooter.’ And they said, ‘That's the shooter?’ And you said, ‘Yes.’”

“I can't feel it.”

“All right,” she flipped the pages back, “also—I'm referring to page three of that transcript—and you were asked by the police, ‘He told you on the phone that he shot him?’ And you said, ‘Yeah.’ And you were asked, ‘Okay’ . . .  yeah—sorry—hold on . . . ” She turned the page, “You were asked by the police, ‘Okay, and this is—and what happened before the shooting? Why did he come up to you?’ And you said, ‘Before the shooting?’ And the police said, ‘Yeah.’ And you said, ‘Oh, yeah, he asked me do I have a connect?’ They said, ‘A connect for drugs?’ And you said, ‘For drugs.’” She looked up at Exson, “Do you remember telling the police that this was the person who asked you to purchase drugs in June two thousand eleven?”


“You don't remember?”

He shook his head, “Uh-uh.”

“Is that a No?”

Exson writhed his face into a sardonic smirk, “That's a No.”

“You don't want to be here, right, Mr. Dimanche?”

“I'm not gonna be here.”

Ms. O’Keeffe held her eyes on Exson for one extra beat . . . then looked down and switched folders. “Now, I'm referring to your deposition—pages forty-seven and forty-eight—and I'll start with—on page forty-seven line twenty-four. I Said, ‘You also circled this picture—'"

Trying to locate his copy of the deposition, Mr. Rosen half-stood, “Objection, we'd like an opportunity to . . ."

Judge Ehrlich picked up his copy, “What page?”

“Page forty-seven starting with line twenty-four.”

The judge grappled with his document for few seconds and found his place, “Okay. Go ahead.”

“I said, ‘You also circled this picture on the second page, right?’ And you said, ‘Yeah—’"

“Objection, calls for hearsay.”

Ms. O’Keeffe, “Prior statement.”


“So, you said, ‘Yeah.’ And I said, ‘Okay, now, why did you say he was the shooter if you weren't there?’ And you said, ‘They said somebody got killed. The white boy could have shot the gun, too.’ I said, ‘Okay, but this black guy told you that he was there when Evani got killed, right? He told you that in the yard.’ And you said, "Yeah.’”

Before Mr. Stern could vault from his chair, Exson looked over and beyond Ms. O’Keeffe, swiftly canvassing the room—left to right—while saying, “I don't even see E-Class in this courtroom!”

Then, as Mr. Stern registered his objection, Exson confronted her, “Somethin’s not fair!”

Judge Ehrlich leaned over the left side of his bench, “Mr. Dimanche—”

Even though Judge Ehrlich was no more than an arm’s length or so above and behind his right shoulder, Exson didn’t hear him, and he pressed Ms. O’Keeffe, “E-Class pulled a gun out on—”

Judge Ehrlich raised his voice, “Mr. Dimanche—”

That startled Exson, and he snapped, quickly turning to the judge while snarling, “Get back!”

This wasn’t your typical Sunday morning snarl, it was the snarl of a terrified cornered entity defending itself with the most threatening display of anger and menace it could muster. It was the snarl of a slightly built young man who, despite his cognitive challenges, understood acutely the danger of the environment in which he had daily existed, and perhaps because of his cognitive challenges, couldn’t instantly recognize his immediate milieu posed no such threat.


Exson bristled, “You are too close to me!”


“She ax me a question! You put your hand on me and I will—”

“Mr. Dimanche, when I address you, listen to my question.”

Exson hunched forward and squirmed in his seat, sullenly—a dark cloud engulfing his face.

“Do you understand what I'm saying to you, sir?”

Looking at his feet, Exson mumped, “I don't know.”

“The easier this goes, the quicker you'll be out that front door. If you can't get this done in an orderly fashion—and you want to get into fights about this—you may not be going out that front door. Do you understand, sir?”

Instantly recovering his animation, Exson straightened his spine and twisted toward the judge—face wide open, eyes flush with excitement, “Then I'll sue you! Because already the papers are all ready signed! Y'all sign a contract. Y'all got nuthin’ on me. I don't care!”

Judge Ehrlich tried to stanch Exson’s convulsing mania, “Sir—”

Exson cut him off, “Like I said, if I go to jail, I'm comin’ back to this same-ass courtroom, and you will lose your duty! Duty, or no duty!”

Accomplishing a surreal symmetric irony, here the examination of Exson Dimanche assumed its nadir—completing its descent into a state of unhinged agitated confusion resembling the berserk derangement one typically associates with insanity.

None of this was lost on anyone in the courtroom—everyone was stunned. No one more so than Judge Ehrlich, who neither flinched nor budged an inch from his position just above and behind Exson. Nor did he lose his composure: pausing for several seconds, then dropping his eyes and blinking as if to collect his thoughts—while the courtroom filled with tense, stupefying, silence.

He then said, “Ladies and gentlemen of the jury, I’m going to ask you to step into the jury room for a moment, please.”

The eight jurors stood and filed through the door at the back of the jury box. Once ensconced in the jury room, they began discharging the emotional tension built up during Exson’s testimony. As they were not allowed to discuss anything related to the trial, their catharses consisted of head shaking, fleeting glances, eye rolling, exasperated sighs and nervous laughs. There were no attempts to initiate the small-talk and banter that heretofore occupied their time during jury breaks; they were too agitated and their emotion tone was simply too high-strung for any of that. Ultimately, each juror sat tautly still—eyes down, hands folded, dumbstruck.

Fortunately, the break was short-lived, as the bailiff soon knocked on the door and summonsed the jury into the courtroom, where order had been restored. One could assume Judge Ehrlich had read Exson the Riot Act.

With everyone in the courtroom sat down, Judge Ehrlich turned to Exson, “Mr. Dimanche, how are you feeling?”

Refusing to look at him, Exson said, “I'm alright.”

“Do you think we'll be able to get through this testimony with the lawyers just asking questions and you giving them the answers, the truth, to the best of your ability?”

Still looking ahead, “Yes.”

“Okay. I appreciate that, sir. And it's great—let them ask a question and then you give an answer and nobody talks over each other and we get through it. It works quickly. Are you okay with that?”

Exson bounced his head, “Good.”

“Ms. O’Keeffe, please go ahead and continue your examination.”

She walked out in front of the podium and raised Marcelyn Toussaint’s lineup before Exson, “Showing you State's Exhibit 42, Mr. Dimanche. Do you remember telling the police that this guy—” she pointed at the circled photo, "you saw him with a white guy on the day of June two thousand eleven?"

Mr. Stern shot up from his chair, “Objection—”

Exson lashed, “No!”

“—Asked and answered.”

Judge Ehrlich, “All right, it's been answered. Overruled.”

Ms. O’Keeffe, to Exson, “Sorry—”

Just in case he hadn’t made it perfectly clear, Exson interrupted her and categorically reiterated, “No!”

“Would seeing a copy of your statement refresh your recollection and help your memory?” She turned and started back to the podium, “Would it help your memory to see your statement to the police?”

Exson began glowering at her, “No!”

She stopped, slowly turned back to him and ask, with a look of mock surprise, “It wouldn't help your memory?”


She took a step towards him, “Did you say that this guy”—and lifted Marcelyn’s lineup again—"was with a white guy on June the twenty-fifth two thousand eleven?”

“Objection, asked and answered.”


Ms. O’Keeffe, “Did you tell the police that?

“No!” Exson’s defiance had morphed into seething anger—

—Just as Ms. O’Keeffe’s keen prosecutorial instincts were taking hold. Like the dance of a huntress, her movements became efficient, her questions, adroit.

She walked back to the podium and opened the folder, “I'm referring to your statement to the police. It's on page four, and we are talking about your statement about the person that you had just circled. And they asked you, ‘And who was he with?’ And you said, ‘A white boy.’” Her eyes pierced back at him, “Do you remember saying that?”


She began circling her quarry, “And do you remember telling the police that that white boy drove a white Pontiac Grand Prix?”


“Did you tell the police that?”

Exson, unwittingly in peril’s grasp, “No!”

“I'm referring to page four of your statement to the police, and referring to the white guy whose picture you had just circled, they asked you, ‘What kind of car?’ And you said, ‘A White Pontiac Grand Prix’?"

“Objection! Improper impeachment!”


Ms. O’Keeffe, “And you said, ‘a white Pontiac Grand Prix.’ Do you remember saying that?”


As if toying with her prey, she ask, “You are saying today that you didn't say that?”

Effecting a curt dip of his head, Exson snapped, “Correct!”

She gathered a lineup and moved in front of the podium. “Okay, and it's your testimony today that you didn't say to the police that this person you had circled”—raising Marcelyn’s lineup before him—“was with a white boy?”


She turned and went back round the podium—to prepare the coup de grâce, “I want to show you a picture of that white guy,” then picked up the second photo lineup, stepped back out in front of the podium, held it up in front of Exson and pointed at the bottom of the first page, “Mr. Dimanche, you already said that this is your signature?”

It's my signature.”

“Right next to it, it says, Driver of Grand Prix, white, right?”

Exson looked her straight in the eye and said, “No!”

She looked around to the front of the document to check—just to make sure it hadn’t perchance been magically altered—then pointed at the bottom of the page, “It doesn't say, Driver of Grand Prix, white, here?”


“Do you need to see it closer?”


She took a step toward the witness box, “I'll bring it closer.”



“—Argumentative, improper.”

Judge Ehrlich, delicately, “He has indicated that's not what it says, ma'am.”

She turned to him, “I'd like an opportunity for him to see it closer, if I may?”


Swinging back to Exson she pointed at the bottom of the page, “Can you read right there what that says?”

“Driver of Grand Prix.”

“What does it say after that?”


“And those are your initials on that picture?”


“And that's the person that you said you saw with the shooter on June the twenty-fifth two thousand eleven, right?


She reached back to the podium to get Marcelyn’s lineup and held it up before Exson, “Is this guy that you circled in this picture—showing you for the record, State's Exhibit 42—he actually specifically told you that he shot Evani Garcia, right?”



“—Asked and answered, leading, and hearsay.”


Exson, “No!”

Judge Ehrlich leaned over the side of his bench, “Sir, if I say sustained, you don't have to answer.”

Ms. O’Keeffe raised Marcelyn’s lineup again and pointed at his photo, “Do you remember this guy—telling you, that somebody got killed!”

“Objection, asked and answered!”

Judge Ehrlich, “Sorry, what was the question again?”

Ms. O’Keeffe turned to him, “Do you remember this guy telling you that someone got killed.”


She reeled back at Exson, “Do you remember that!”

Exson looked down and shook his head once, “No.”

No because you don't remember or no because he didn't say that!”   

Still looking down Exson shook his head and said softly, “I didn't even hear your question.”

“I'll repeat it again.” She lifted the lineup and pointed at Marcelyn’s photo, “Did this guy—tell you, that someone got killed!”

Exson didn’t look up, “No,” and while slowly shaking his head, said, “I never saw’m before.”

Ms. O’Keeffe—face teeming with empathy—asked, “And you don’t want to be here today, do you Mr. Dimanche?”

“I don’t want to be here,” Exson pleaded. “I don't know anything. That's what I'm sayin’—I don't know anything. I keep gettin’ questioned—I don't know anything.”

“Did you circle those photos because you thought the police would arrest you if you didn’t, Mr. Dimanche?”

No, they ain’t got nuthin’ on me.”

She turned to Judge Ehrlich, “I have no further questions, Your Honor.”

“Thank you, Ms. O’Keeffe.” Then looking to the defense table, “Cross-examination?”

“No questions, Your Honor.”

Judge Ehrlich turned to Exson, “Thank you for your testimony, Mr. Dimanche. You are able to leave the courtroom.” And without a mote of sarcasm, he said, “Have a wonderful day.”


Exson stood up, turned to his left and took one step down from the witness box to the courtroom floor: putting him in front of the right corner of the jury box. He reached his right hand across the railing—extending it as a handshake almost into the lap of the juror sitting in front of him. Reflexively, I accepted it and shook Exson’s hand. While shaking my hand, he jounced his head at me once, decisively, as if to proudly acknowledge his splendid achievement in testifying there that day.

Everyone was astonished, save three: Exson, who seemed quite pleased with himself, Judge Ehrlich, who shook his head in disbelief, and me, I was simply embarrassed.

Exson turned to his right, walking along the jury box railing on his left until he cleared the clerk’s desk on his right. He then turned to his right and walked diagonally toward the spectators’ section gate from whence he came. Just before reaching the gate, he was directly in front of the defense table, and straight across the table sat Marcelyn Toussaint.

Exson stopped, looked at Marcelyn, then at Marcelyn's family sitting just to his right in the spectators’ section, and said, “I’m sorry.” And finally, Exson turned to his right toward Ms. O’Keeffe and Ms. Bartlett, at the State’s table, and said, “I’m sorry.”

This was the final straw for Judge Ehrlich, “Bailiff, if the gentleman isn’t out of the courtroom in five seconds, remove him.”

Exson made it with perhaps one second to spare.

And that was the last of Exson Dimanche—Judge Richard Ehrlich’s arch nemesis and the improbable fulcrum around which the State’s case against Marcelyn Toussaint hinged.

“Your Honor . . .” Mr. Rosen hoisted himself to his feet, haltingly. “Well . . . I think the record should reflect the fact . . .” He glanced at the door Exson just exited, “Because . . .” then looked down and rocked his head left to right while saying, “I've never seen it in my career.” Hiking his brow, he looked up at the judge, “Mr. Dimanche felt the need to shake the first juror's hand.”

“The record will reflect that the witness shook the first juror's hand.”



.  .  .   §   §   §   .  .  .




Eric Galvez  was nearly the ideal first witness for the prosecution in the second-degree murder trial of Marcelyn Toussaint—nearly. He was involved in almost every step leading up to the murder, he witnessed it, and his participation shaped its investigation. Thus, he could provide the integral first-person narrative—laying everything out for the jury. Eric Galvez should have been the first witness, but he wasn’t. . . .



© 2019 John Lamka