The Judge (47 page)

"No games," says Radovich. "I won't have games here." "Well, he's playing games," says Kline.

"No games," I say. "We may, I admit, have theories. But theories are not discoverable," I tell the judge.

"You know where it is?" he says.

"I don't know anything," I tell him.

Radovich lays both hands palms down on the desk and smiles. "He says he doesn't know," he tells Kline.

"He's lying," says Kline.

"You've asked me and I've told you. Your Honor. I don't have it, and I don't know where it is."

"Sure," says Kline, "but Goya does." "You know that? Prove it," I tell him.

"Your Honor, we move to reopen the state's case, to call Lenore Goya to the stand," says Kline.

"And we object," I tell Radovich. "The state had every opportunity' to call Ms. Goya during its case. It was aware other fingerprint on the victim's door and it failed to call her. Now they think they made a tactical mistake and they want to revisit it." Radovich is a million faces, expressions like melting butter behind the desk.

"I'm inclined to agree," he says. "You had your chance," he tells Kline. "It's not that I'm unsympathetic." He gives me a look as if he's not sure he believes me.

Kline makes a last hit, and the judge cuts him off.

"Unless you can make an offer of proof," says Radovich, "some hard evidence that Ms. Goya or Mr. Madriani has the item of jewelry in question, I'm not gonna allow you to reopen. We have to move on." Harry and I turn to leave.

"And you, Mr. Madriani," says the judge. "You better not be comin' into my court with any last-minute evidence of jewelry discovered the night before you close. Do we understand each other?" "We understand each other," I tell him.

He gives me the evil eye. "Good," he says.

As I brush by Kline on the way out I can feel a shudder run through his body with this contact. He comes up close in my ear so that no one, not even Harry, can hear this.

"You tell that bitch," he says, "you tell her that I want it." He is actually holding my arm as he says this, a grip like iron so that I have to pull my shoulder to one side to get away.

When I look in his eyes, it is there: all of the hostility, months of shallow, concealed enmity toward Lenore suddenly bubbling to the surface, finding expression in this a piece of missing evidence.

HAPTEB

HERE COMES A TIME WHEN YOU ARE FORCE!? TO take your chances. If you are lucky and blessed by wits, these moments occur only infrequently, snippets of panic in the middle of a trial. You try to minimize them, hedge your bets, cover your ass, but in the end you close your eyes and cross your fingers. One of these is about to happen in our case.

Jerry Franks dabbles on the edge of expertise in a dozen fields of forensics. He is master of none. His resume has the substance of the Sunday comics. That his testimony is based on any organized body of knowledge is an item that must be taken on faith, like the beatification of the saints. He is, in short, the man you call when you wish to purchase an opinion. His credentials are not simply subject to question, they are for sale.

For all of these reasons Kline veritably gloats when I call Franks to the stand. In the war of "my expert is better than your expert," anyone using Jerry Franks could be construed as mentally challenged.

While he may have mastered the jargon, his grasp of the science is not always there.

He is short and stout with tousled hair, what is left of it, and thick glasses in horn-rim frames. These are set with clear glass, like window panes, so that I have always assumed they are for effect. His sport coat is part of the uniform for court, corduroy that went out twenty years ago with leather-patched elbows, and pants so stiff with perspiration that they might produce dangerous vapors under the press of an iron. His black shoes are strangers to polish, with a hole in one sole that I have seen him display with pride when he crossed one leg in a hearing a year ago. He cultivates the image of the debauched professor, someone who you might guess has drunk his own juice from some lab experiment.

As Franks climbs toward the stand, Stobel says something to Kline and the two men actually laugh, so that there is no question as to the butt of their joke. Among lawyers in this town and the more perceptive jurors, Franks's opinion on any subject is likely to carry the weight of helium. With a jury this is less certain, though a good attorney can usually cut him to shreds.

He is sworn and before I can reach the podium, Kline is on his feet objecting.

"Your Honor, we have received no report from this witness. No findings or written opinion," he says.

"For a simple reason," I tell the court. "Because the witness did not render one." I have given Kline a summary of Franks's testimony, but only to a certain point, enough to make him curious and satisfy the elements of discovery.

"Well, can we at least ask the purpose of his appearance here today?" says Kline.

Radovich wants a sidebar. We huddle at the edge of the bench. "What's this about, Mr. Madriani?"

"Evidence relating to the calendar in the victim's apartment, Your Honor." I have had Franks examine four or five items of evidence, the calendar being one among them, so that Kline could not focus on a single issue.

"What about the calendar?" says Radovich.

"There appears to have been some notations, impressions on the calendar that we believe are relevant."

"Being offered for what purpose?" says Kline.

"To show that there was more written by the victim on her calendar for the date of the murder than has been revealed thus far," I tell the judge.

"No wonder he didn't provide a report," says Kline. "Even if this is true, it's hearsay." Unless we can fit Hall's notation under some exception, Kline is right.

He had to find an exception to hearsay himself to get the note on Acosta's meeting into evidence, as an adoptive admission.

"The content may or may not be hearsay," I tell him, "but the fact that there may have been other entries on the victim's calendar for that date is not." The problem for Kline is that this, an additional meeting on the date of the murder, is certain to inspire assumptions by the jury that Kline cannot control.

"For that limited purpose," says Radovich, "the witness may testify. But keep it tight," he tells me.

I look at Franks on the stand. "Right." We back off. I see Acosta is sitting next to Harry at the table questioning him as to what is going on.

For all that she is not here in court today, Lenore is now increasingly at the center of our case.

It was as much tactics as loyalty that has kept me from calling her into court. What Kline thinks she knows, or has, is now his darkest dream, what I would not wish on anyone except an adversary at trial, some thing to keep him awake with angst in the night.

Without Lenore, I have had to back-fill and jury-rig to figure some way to get at the note that Lenore removed from Hall's calendar, the fact that at some point the victim and Tony Arguillo had scheduled a date for that night. It is the reason for Franks's appearance here today.

We do the thing regarding his credentials. This takes only a moment. Kline wants to voir dire the witness as to expertise. He is allowed to ask several questions, and when he is finished he objects to the witness.

"He does not qualify as an expert. Not in the field of paper and impressions," says Kline.

We get into an argument over this.

Franks has attended two seminars on the subject, one of them five years ago. He has dabbled, though he cannot tell the court that he has ever testified previously concerning the topic of indented writings.

Radovich cuts us off. He asks the witness a few questions of his own regarding his background and the technique of identifying impressions in paper. He finally concludes that the issue, the existence or nonexistence of indented writings, does not involve high science.

"If he were going to testify on the content I might agree," he tells Kline. "But in this case, it's a matter for the jury in ascribing the weight to be given to the witness's testimony." Kline is not happy but he sits down. Franks hasn't said a word and he is already mired in controversy.

"Mr. Franks, can you tell us whether you examined a calendar made available to you by the police at my request?"

"I did," he says. "And I found--"

"Just answer the question." I cut him off. Franks would like to cut to the chase, collect his fee, and get out.

I have the calendar brought over from the evidence cart, and Franks identifies it as the one he examined. I flip it open to July and place it on an easel in front of the jury, back far enough so that they would need binoculars to dwell on the incriminating note with Acosta's name.

"I call your attention to July fifteenth and ask whether you specifically examined the calendar block, the white portion or space for that date on this calendar?"

"I did."

"Can you tell the jury what type of examination you performed?"

"I was requested to examine the calendar for the date in question, to determine if there was any evidence of writings not otherwise visible.

Indented or impressed writing."

"And what is this, indented writing'?" I ask.

"These are impressions or fragments of impressions left on a piece of paper by the pressure of writing on a sheet that was placed over it at one time and later removed."

"Like successive pieces of paper on a pad?" "Yes."

"Were you able to determine the existence of such impressions on the calendar in question for the date of July fifteenth?"

"I was," he says. "There appeared to be impressions of handwriting." "And were these decipherable?"

"Objection. Hearsay," says Kline.

"The question was whether this intended writing was readable, not what it said." I turn on him, and Radovich tells me to direct any argument to the bench.

"The witness can answer the question yes or no," says the judge. "Yes," says Franks.

"The note was readable?"

"Yes." I turn away from the podium for a moment, considering ways to nibble at the edges.

"In examining the calendar, was there any way to determine what kind of paper the original note might have been written on, the paper that was removed?" It always helps when you know what the evidence is before you go looking. Franks and I have worked on this. I told him what it was, and he contrived methods Co discover it. "There is some indication," he says.

Kline is getting antsy. "And what was that?"

"Examination under a microscope revealed the existence of some very fine mucilage." He loved the word and had to put it in, told me that it provided credibility.

"This mucilage was on the surface of the calendar for the date in question."

"Mucilage?"

"Glue," says Franks.

"Ah. What kind of glue?"

"Under intense light," he says, "and with high magnification, I would say that it is very similar to what might be imparted by one of those yellow stick-on notes we all use." Under intense light and high magnification, bullshit is still bullshit and Kline smells it. He rolls his eyes and starts grousing at his table. He actually throws two pieces of paper into the air and lets them float back down onto the surface in front of him as if to make sure that the rules of physics are still functioning. He flashes Stobel a "can you believe it" look.

Harry has one of the stick-on notes, a sample, at the counsel table ready to hand to me, so I show it to the witness.

"That's the kind I'm talking about," he says.

Kline by now is convinced that this is an impossibility. He wants to look at this, and with Stobel at his side they stick it to a piece of paper, roll it with a thumb, and pull it off. Kline feels with his fingers for glue. and shakes his head. He holds it up to the light, looking for evidence of the glue.

Before I can object, Franks takes care of this for me.

"Oh, you need a microscope." He says this with guileless sincerity, to Kline, so that a couple of jurors actually laugh. Kline gives the witness a look as if the word cross had suddenly taken on a whole new meaning: three nails and two boards. He starts collecting venom for his cross examination.

"Now you said that the impression from this notation was legible. What technique or process did you use to read it?"

"I did it the old-fashioned way," he says.

He pauses to look at me. For a moment I think he's going to say, "I made it up." And then he says, "Oblique light."

"Explain to the jury, please."

"You take a bright light and shine it across the surface of the impression. Shadows appear in the indented areas of the paper, and if they are deep enough they become legible. There are other methods, some more sophisticated," he says.

"I'll bet," says Kline.

I object to this, and Radovich admonishes him. Tells him he'll have his turn.

"I can't wait," he says. I ignore him.

"This oblique-light method worked?" I ask. "It was sufficient for our purposes."

"How many words appeared on the indented notation?" "Objection," says Kline. "Hearsay."

"I'm not asking for content, just word count," I say.

We are treading on the edge, and Radovich considers for a moment before he rules.

"I'll allow it," he says, "but nothing more."

"Let's see." Franks counts with his fingers and I begin to wonder if he's going to have to feel through the hole in his shoe if he gets above ten.

"Does the man's initial, and the time count, or just the name?" he asks.

"Objection." Kline storms to his feet. "Move to strike," he says.

"The witness's comment will be stricken," says Radovich. "The jury is to disregard it." The judge gives me a look, eyes that burn. Then he turns this on Franks in the stand.

"Just answer the question," says Radovich. "How many words? Any thing beyond that and you'll spend the night in jail. Do we understand each other?"

"Lemme see." Franks starts counting again.