Key Witness (69 page)

“So what?” Wyatt countered. “Once it’s over, it’s over. It doesn’t matter if new information comes up afterward, prosecution can’t appeal after the fact—any first-year law student knows that.”

Grant put his hand up for them to quit bickering while he read the settlement agreement. He looked up, taking off his reading glasses and folding them into his shirt pocket.

“The defense’s position regarding the legality of that plea bargain is the right one,” he said. “That case has been settled. It’s on the record.” He looked at Wyatt. “Your client has pleaded guilty to a violent crime. And under the rules of evidence that record can be used against him if it helps establish a pattern, which this clearly does.”

“Bringing in the witness is permissible, I agree with that, Your Honor,” Wyatt said. “But to use videotape of it as evidence is of great concern to us. It’s inflammatory and will color the jury’s attitude toward my client.”

“I understand your concern,” Grant acknowledged. “But if I’m allowing prosecution’s witness to testify I don’t know what grounds would be for denial of admission of those videotapes. How do you plan to argue it?” he asked.

He was giving Wyatt the chance to help him deny admitting the tapes into evidence; he was still smarting from the Mavis Jones fiasco of the day before, Wyatt figured.

Pagano jumped in with both feet. “There are no grounds, Your Honor,” he argued vigorously. “The witness and the tapes are of a piece. And allowing someone as sharp as defense counsel to find a way is improper.”

“Thanks for the kudo,” Wyatt said, smiling at his opponent. “I’ll use it in my memoirs.” He looked at Grant. “I don’t know how to help you, Your Honor. I can’t find any precedent that will allow me to, since you’re going to allow the witness to testify.”

“You’re not going to contest this?” Grant asked in surprise.

“I can’t find a reason to back me up, Your Honor. I wish I could,” he added ruefully. “It’s going to hurt.”

Grant gave him back the document. “In that case, I have no option but to let this videotape be admitted into evidence.”

“Thank you, Your Honor.” Abramowitz turned to Wyatt. “Sorry, Charlie,” she said, dripping sarcasm onto Grant’s threadbare carpet.

He gave a little shrug and smiled. “Can’t win ’em all.”

D
ARRYL GRABBED A COUPLE
of Rolling Rocks from his fridge, twisted the tops off, and handed one across the desk to Wyatt. “Man, you’re walking a tightrope across the Grand Canyon without a safety net,” he said, his voice etching concern. “Are you sure this is a workable angle of attack?”

“No,” Wyatt answered candidly. “I’m not sure at all. It could blow up in my face—in Marvin’s face. But I have to be aggressive in the way I try this case, take some chances. He’s sixty to seventy present convicted already, so playing it book-safe isn’t going to cut it. As long as it’s my case I’ve got to go with a strategy I think might work. I know it’s high-risk, but sitting on my ass will kill his.”

Darryl nodded. “I know where you’re going. It’s a risky tactic. I don’t know if I’d have the guts to try it.”

“Maybe I’m too damn dumb and inexperienced to know any better.”

“No way, José. You can’t pull that neophyte shit anymore. You’re doing as good a job as anybody could.” He raised his bottle in salute.

“Thanks.” Wyatt sucked down some brew. “Coming from you that means a lot. You know,” he mused, “prosecutors are used to rolling over people like Marvin White. A couple days picking a jury, two or three days prosecution testimony, a day or two for the defense, it goes to the jury and out rolls another guilty verdict. Assembly-line justice—it’s what they’re used to, and it’s what works for them. The poor outgunned defendant’s down for the count before he ever saw the punch coming. And I don’t mean to cast aspersions on Walcott’s office when I say that. They do as good a job as they can, but the more I’m around there the more I realize how stacked the odds are against them.”

He took another swallow of beer. “My feeling is you throw them some unexpected moves, change up on your fastball, and they don’t know what to do—they spin their wheels and crash into a wall.” He paused. Soberly, he added, “At least I hope that’s what I can force them to do.”

O
VER ONE MORE PRO-FORMA
objection from Wyatt the Korean shop owner was on the stand, as impassive as a stone Buddha. Abramowitz was questioning him about the happenings of that night.

“Had you ever seen the defendant, Marvin White, before that night, Mr. Kwon?” she asked. She looked over to the defense table and pointed at Marvin.

The shopkeeper looked over. “I see him.”

“He had been in your store before?”

“Yes, he come in before.”

“There’s no doubt in your mind? You couldn’t be mistaking him for someone else?”

The man shook his head. “I see him in my store before. He always sulking around like he’s gonna shoplift something. So I keep eye on him. I know him,” he said forcefully.

“Had he been in the store before on the night he tried to rob you?”

The man bobbed his head. “He come in earlier.”

“What did he do?”

“Buy cigarettes.”

“He bought a pack of cigarettes. Do you remember what kind?”

“Marlboro cigarette. Regular box.”

“He bought a pack of Marlboros.” She looked over at the jury. “Then what did he do?”

“Leave store.”

“All right.” She glanced at her notes, looked up. “He came back later?” she asked.

Another nod. “He walk in when no one in store. Like he wait until it empty.”

“Than what did he do?”

He told the story; how Marvin had put a gun to his face, made him take the money out of the cash register, tried to shoot him. The gun had jammed, giving the shop owner the chance to get his own shotgun out from underneath the counter. That as he had raised it in self-defense Marvin had tried to shoot him again. That upon seeing him about to fire, Marvin had turned tail and run, and he had tried not to shoot, but he had no control over his emotions and his finger pulled the trigger involuntarily.

“We have collaborating evidence of this witness’s account, Your Honor,” Abramowitz said, “which we would like to present now.”

Grant nodded. “Go ahead.”

A large television set connected to a VCR was wheeled into the room and set up at an angle that allowed the jury to easily see the screen. Abramowitz inserted the tape. “Would you lower the lights, please.”

The room lights were dimmed. Abramowitz hit the play button on the VCR remote. The tape started.

The jury had been properly attentive before, listening to the prosecution witnesses’ testimony. Actually seeing the commission of this crime, however, ratcheted their attention span up. As there was no sound on the recording, the dialogue between Marvin and the shop owner could not be known conclusively. In addition, since the clicks from the misfiring of Marvin’s gun weren’t heard, his intention could not be satisfactorily judged. The camera was too far away and the lens angle was too wide for anyone who hadn’t actually been there—anyone other than Marvin and the shop owner—to be able to tell whether he was pulling the trigger, and that only because the gun jammed was the store owner not killed; or conversely, that he was not pulling the trigger at all. It could be argued either way.

The tape stopped after the shop owner fired his shotgun and ran out of frame toward the door in the direction in which he had fired. Marvin was not shown being shot—the camera didn’t cover that action.

Abramowitz turned off the VCR. “Lights, please,” she asked.

The lights came back on. She looked with intensity across the room toward the defense table, where Marvin was sitting, staring straight ahead, seeing nothing.

“Look at her,” Wyatt whispered. “Now!”

Marvin turned and faced Abramowitz. She was standing in front of the jury, so that looking at her meant he was also looking at them. The jury was staring at him intently.

“Keep looking at her,” Wyatt ordered him.

It took everything he had, but Marvin kept his eyes focused on Abramowitz.

She broke eye contact, turning back to her witness. “You clearly heard the defendant’s gun misfire, is that correct? That he tried to pull the trigger. His intention was to shoot you so he could take the money, but the gun didn’t go off—which is the only reason you are able to be here in court today, isn’t that right?”

“Yes,” the man hissed. “He try to kill me. Gun no good. Otherwise I dead man.”

Abramowitz looked toward the jury. “This man had a gun to his head,” she said, pointing to Kwon, the store owner. “If it hadn’t misfired, the defendant would be on trial for that murder as well. We are pointing out the venality of this man,” she forcefully told the twelve men and women who had watched the videotape. “This man that raped, sodomized, and murdered a woman, then calmly walked a few blocks away and tried to rob and kill an innocent store owner.”

“Objection,” Wyatt said. “Prosecution is giving her summation, not eliciting testimony. The defendant has not been convicted of anything, Your Honor, and there is no proof he was trying to kill this man here. The pictures are highly ambiguous.”

“Maybe to you,” Abramowitz fired at him. “But not to anyone who can see. Or has compassion for these seven innocent victims.”

Grant hammered his gavel. “Objection sustained. Please restrain from this type of editorializing,” he admonished her.

Abramowitz gathered her paperwork. “No further questions, Your Honor.”

Wyatt waited until she was seated, then walked over to the prosecution table and leaned down over his knuckles, so that he was right in her face. “Can I have the control gizmo for that tape player of yours?” he asked her.

Startled, she drew back in her chair, pushing the remote across the table in his direction. “Thanks,” he smiled at her. Walking to the lectern, he turned to the deputies guarding the door. “Would you fellows please douse the lights again for me?”

The room went dark again. Wyatt hit the rewind button, playing the tape backward until Marvin was first seen, approaching the counter where the store owner stood with his back to him. As soon as Marvin entered the frame, Wyatt hit the pause button.

The picture froze on the television screen. A high black-and-white shot from above, the figures small in the frame. “Could I have the pointer, please?” Wyatt asked.

A deputy brought it to him. He walked to the television set, making sure he wasn’t blocking the view of any of the jurors. He pointed to a small bar code imprint in the right-hand bottom of the screen.

“Could you tell us what that bar code is for?” he asked the witness.

Mr. Kwon stared at the screen. “Identification,” he said in a flat, inflectionless voice.

“Identification,” Wyatt repeated. “The tape is bar-coded to identify it, is that correct?” he asked.

“Yes.”

“So you can tell it from other tapes?”

“Yes.”

Wyatt pushed the play button again. As the picture came to life, the bar code changed. He let the tape play a few seconds, then froze it again.

“If the tape is merely for identification,” he asked, “why is the bar code changing?”

“Objection,” Abramowitz called out immediately. “The bar code is irrelevant, Your Honor.”

“Overruled,” Grant said immediately. “Answer the question,” he told the shop owner.

Wyatt put a restraining hand up. “Let me get back to that in a minute, okay, Your Honor? There’s another line I should clarify first, if I can.” He turned to the shop owner again. “Why do you think the defendant picked your store to rob?” he asked. “Little mom-and-pop convenience store, you couldn’t have too much in the register. It looked like less than five hundred dollars. There must be other stores around with more cash at hand.”

“Objection,” Abramowitz called out. “Calls for conjecture by the witness regarding a motive he couldn’t possibly know.”

“This bears directly on this bar code thing,” Wyatt said quickly before Grant could sustain her. He went over to his table, got some papers, and brought them up to Grant for inspection. The judge looked them over. “If you want to enter this into evidence it should come during the presentation of your case in chief,” Grant pointed out.

“That’s fine,” Wyatt said. “I wanted to authenticate the accuracy of prosecution’s evidence, that’s all. I’m not fighting what’s on that screen, Your Honor. I’m agreeing with it. I want that to go on the record.”

He walked over to the television set and pointed at the bar code on the bottom of the screen again. “Isn’t this bar code really a time code?” he asked. “Each different bar represents a different time, doesn’t it?”

“Objection!” Abramowitz yelled.

“Overruled,” Grant said sharply. “Answer the question,” he told the witness.

The shop owner stared at Wyatt. “Means time code,” he agreed.

Wyatt glanced over at the prosecutor’s table. Abramowitz looked like she had swallowed a ten-pound lemon. “Did the prosecution … did Ms. Abramowitz ask you what the bar code was for?” he asked.

The witness nodded. “Yes,” he answered after hesitating.

“Did you tell her?”

“Yes,” again.

“And she was shown how to decode it? So she could read the times that bar code represented?”

“Uh,” the man grunted.

“That’s a yes, I take it.” Without pausing, Wyatt punched up rewind on the tape machine, again pausing it when Marvin was first seen entering the picture. Walking over to the defense table, he picked up a computer printout with similar bar code symbols on it, each one followed by a specific, sequential number. “Let me show you a matching bar code to the one on the TV.” He handed the printout to the witness and pointed to the top set of numbers. “Would you read those numbers for the jury?” he asked the witness.

The man squinted at the sheet. “Twenty-two-twenty-five thirty-eight,” he read in his fractured English singsong.

“Twenty-two-twenty-five thirty-eight,” Wyatt repeated. “Would that mean that the time represented on the screen right there is exactly ten-twenty-five and thirty-eight seconds in the evening?” he asked. “This is set up on military time, is that correct?”

The man bobbed his head. “That what it mean.”