There is chaos in every quarter of the room. While it was the unstated question on every mind, that Kline would actually ask this with the jury present sends Radovich into a fury. The fact that Nichols tried to answer finally brings a delayed refrain from the press rows of “Whadd he say?”
Harry turns and tells them the witness said, “No,” and several of them actually write this down. We may win the media battle and lose the war.
Radovich, still in his chair but leaning over the bench, slaps his gavel on wood. “I’ll clear the room,” he warns.
This brings it down a decibel or two and he turns on Kline.
“That’s an improper question, and I think you know it,” he says. “Get out your wallet,” he tells him. Radovich is going to impose sanctions, here in front of the world. He does not even send the jury out. It is the thing with the prosecution. There is no right of appeal.
The person most surprised by this seems to be Nichols himself. The thought of dressing down a lawyer, much less humiliating him in public, is a notion alien to this judge. He would have hoped to live in more temperate times, when winning was not everything.
“The jury is to disregard the question and any implications,” says Radovich.
“I have no more questions of the witness,” says Kline. He says this almost absently as he fishes for his checkbook in the maroon silk lining of his coat.
“You’re damn right,” says the judge. “It’s gonna cost you six hundred dollars for the last one. Pony up to the clerk,” he tells him.
“I will see counsel in chambers,” he says. “Five-minute recess.” Radovich slams his gavel so hard that the hammerhead separates from the handle and careens across the floor, hitting one of the sheriff’s guards in the foot.
By the time we get inside, Radovich has not cooled. Kline is still pocketing his checkbook and overflowing with apologies. “I spoke before I thought,” he says.
“You may have talked us all into a mistrial.” Radovich is several shades of red.
“I don’t think it’s that serious,” says Kline.
“You aren’t the appellate court,” says Radovich. “At least not yet.” He has been smelling ambition on Kline since the start and now it slips from his lips.
“If there’s a problem it can be handled by an instruction,” says Kline. “They’ve been told to disregard it.”
“Your Honor, the question was clearly laid,” I say. “The jury cannot have missed the implication. They would take a strong lead from the conclusions of a sitting judge, one with no incentive to lie.”
“So what do you want?” says Radovich. “To try this thing again?” He’s looking to see if I’m moving for a mistrial. This he would no doubt deny.
“No,” I tell him.
“Then what?” he says.
“Some leveling of the playing field,” I tell him.
Kline has a wary look. He sees something coming but is not sure what.
“I think it can fairly be argued,” I say, “that Mr. Kline begged the question of motive for my client’s temper, the reason for his intemperate statements about the victim. I think we should be allowed to inquire into this on cross examination.”
There’s a wail from Kline that I suspect can be heard outside in the courtroom. The press is probably wondering if Radovich is skinning him with a cat-o’-nine tails.
“Your Honor, I was very careful not to get into that. It’s beyond the scope of direct.” He moans in front of the judge’s desk, insisting that there is no precedent. “Besides,” he says, “anything Nichols would have to say on that score is clearly hearsay, with no exception.”
“On the matter of precedent,” I say, “there are cases dealing with the context of a witness’s testimony. It’s only fair that the jury should understand the context in which my client made these statements. What motivated them?”
“What could justify such ugly remarks?” asks Kline.
“Why don’t we let the witness tell us,” I say.
“On your own time,” he tells me. “You want to call him in your own case, fine,” he says. “You can ask him what you want.”
The problem with this, and Kline knows it, is that to call Nichols as our own witness would no doubt open the issue of Acosta’s character. Cross this line, and the Coconut’s life is an open book, the pages of which I do not know myself, though I would venture that Gus Lano and the boys from Vice have already penned volumes of this, bound and stacked, waiting to be read.
“Enough,” says Radovich. “You want to get into motive for the statements”—he’s looking at me—“do it.”
“But, Judge . . .” Kline’s final appeal is cut off.
“You don’t like it, object,” says Radovich.
He’s done with us, out from behind the desk and heading for the courtroom, Kline and I still squabbling in his wake.
Once there, back at counsel table, Acosta has a hand on my arm, trying to find out what happened.
“Watch and see,” I tell him. “I don’t know.”
Radovich calls the room to order. Nichols is on the stand.
“Your witness,” says the judge.
When I get my opening I do not wait. The theory here is to strike while Radovich is still hot, angry with Kline. If he’s going to give me an edge it will be now.
“You testified,” I say, “that the first thing you remember my client, Mr. Acosta, saying is that Ms. Hall lied.”
“That’s correct,” says Nichols.
“Did he say what she had lied about?”
“Objection. Beyond the scope of direct.”
“Overruled on those grounds,” says Radovich.
“Hearsay,” says Kline.
Radovich wavers only an instant before he pronounces overruled. Kline now knows that this, a bad ruling on evidence, is the balance of his sanction.
“Please answer the question,” I tell Nichols.
He seems delighted to comply. “He told me that she lied about the nature of their conversation the evening he was arrested. That he had never tried to solicit an act of prostitution, but instead had been called by Ms. Hall on the telephone, who asked him to meet with her.”
“Did he tell you why she wanted to meet with him?”
“According to Judge Acosta, she had information for him in connection with a grand jury investigation.”
“Did he say which one?”
“Yes. It involved an investigation into police corruption. Specifically, the Police Association.”
“So according to Judge Acosta . . .” Kline doesn’t even bother to object when I use the title. At the moment he is more concerned about the content of the testimony. “He was lured to this meeting with information relating to official duties.”
“Objection. Mischaracterizes the evidence,” says Kline.
“Overruled.”
The fact that Radovich doesn’t think so gives credence to the assumption.
“That’s what he told me,” says Nichols.
“And this is why he was angry?”
“That, and because he said she fabricated evidence,” says Nichols. “False testimony concerning his alleged solicitation.”
“And it was in this context that he made the rash statements that you testified to earlier?”
“Yes. Absolutely.” Nichols is anxious to take the edge off of this if possible. To do his duty without damaging a friend. His kind of justice.
“Did Judge Acosta say anything during this conversation about Ms. Hall being involved with the Police Association, the people under investigation?” I ask.
Nichols thinks hard for a moment. He clearly wants to help, but cannot. He shakes his head. “I don’t think so.”
I of course know the answer to this already. Nichols would have volunteered ha
d he known. Anything to resurrect his friendship. The purpose in asking is to plant the seed with the jury.
“Did he ever tell you that she was closely associated with members of that association, in particular, the officers assigned to Vice who were with her the night Judge Acosta was arrested?” I water and nurture it.
“No. I’m afraid not,” he says.
I turn back toward my table, as if I am finished, then stop at some fleeting afterthought.
“One more question, Judge. I’m curious,” I tell him. “Did you ever tell the police when they questioned you, or the district attorney, about Judge Acosta’s insistence that he was set up, framed on the prostitution matter?”
“Yes. I told them what I told you.”
I look over at Kline. The effect of this is to make clear that he was withholding this from the jury.
“And did they pursue it with you? Did they ask a lot of follow-up questions about the details of what Ms. Hall might have told Judge Acosta to lure him there that evening?”
Nichols’s eyes brighten. He may be a soft touch, but he is not stupid. He sees where I am going, a lifeline to rehabilitate his relationship.
“As a matter of fact, no, they didn’t.” Then before I can turn, he goes the extra yard. “They didn’t seem interested.”
Kline gasps, then holds the objection. He knows the damage is done.
CHAPTER 26
THE LAST WITNESS THE STATE BRINGS ON IS THERE FOR a single purpose, to end their case on a note of melancholy.
It is played for high drama with much fanfare. Coleman Kline excuses himself moments before she arrives in the courtroom. He tells Radovich that the next witness will require special attention. Since he has other business outside of the courtroom Kline has assigned one of his deputies, a woman who he says is specially skilled, to handle the next witness.
He gathers his papers and departs by way of the door through the judge’s chambers, a back route that allows him to avoid the cameras and the throng of press outside. There are several moments of breathless anticipation during which the clerk does not announce the witness by name, this by special arrangement, though those of us involved know who it will be.
All eyes are riveted on the door at the rear of the courtroom. It swings open partially for an instant, then closes again. When it is finally opened again a bailiff leads the way, followed by a small entourage. Hidden in this procession, close to the ground, all three and a half feet of her, is Kimberly Hall. Holding a small stuffed bear under one arm, she trudges down the center aisle. From the hush soon come whispers from the public rows—“Brittany’s little girl.” We have lost this fray, and Kline now makes the most of it. Harry and I had argued vigorously in the noticed hearing that Kimberly could offer nothing approaching probative evidence, but Kline prevailed.
The child was able to testify that she heard loud arguing, a lot of anger before her mother’s death. And while it was the product of Radovich’s leading question, she also identified a male voice as being the other person present with her mother that night. I have renewed my motion to strike this from the transcript of the hearing, a motion that Radovich denied. It could become a point on appeal if she restates this here on the stand.
Still, it is clear that Kline’s purpose in calling this witness is not substantive but tactical. Kimberly is here to remind the jury of the continuing loss inflicted by this crime, that the suffering did not end with her mother’s death. It is a bold play by Kline, and poses some danger for both sides.
Kimberly is guarded by a phalanx of supporters, her grandmother, the psychologist from Child Protective Services, and Julie Hovander, the A.D.A. who has established rapport through months of hand-holding.
They situate the child in the witness box. Her grandmother moves to her seat beyond the bar, out in the public section. The psychologist takes up a position next to Kimberly, just outside the railing to the witness stand, where she can run a hand up the child’s dress and move the kid’s mouth if need be—her version of Punch and Judy.
I object to this, and Radovich after some protestation by the psychologist orders her to take a seat.
“If we need your services,” he tells her, “I’ll be the first to call.”
He draws a glare from the woman, who finally sits down, but inside the bar. She plants herself at the counsel table next to the D.A.
When I object to this, Radovich makes an exception, and tells me to be quiet. We are walking on eggs. He does not want to unnerve the child. Holding her little bear, she sits poised in the box, like an eight-hundred-pound gorilla in a party dress.
Kline and his minions have had months now to hold her hand, to offer suggestions, some perhaps not so subtle. The fear here is that Kimberly will say things she did not during the earlier hearing—the product of coaching. This would place me in the impossible position of having to impeach her with her earlier statements, something that the jury would not appreciate. Acosta could find himself convicted of murder because his lawyer harassed a little girl on the stand.
“What do you think?” he asks me. “Will she stick with her earlier testimony?”
“Who can tell what’s in a child’s mind?” I tell him.
“My thoughts exactly,” he says.
There’s some whispering off the record between Radovich and the child. Broad smiles from the bench. He does not have her sworn but instead asks if she knows the difference between the truth and a lie.
She tells him the truth is what really happened and a lie is something you make up.
“Do you know which one is good?” he says.
“The truth,” she tells him.
“And do you promise to tell us the truth today?”
“Yes,” she says.
“Only the truth. No lies?” says Radovich.
“Yes.”
She is clearly more verbal in her responses than she was months ago at the hearing. I take this as a sign that they have been working with her.
“Your witness,” says Radovich.
Hovander is a plodder, not impressive in her style, but thorough, one of those lawyers who moves two steps forward and three back with each set of questions.
“What’s your bear’s name?” says Hovander. Something to establish trust.
“Hungry,” she says. This is the bear given to her by the police after Binky, the bear from the murder scene, was seized as evidence.
“Why is he called Hungry?”
“Bears are always hungry, and he can’t eat,” she says.
“Well, that’s true,” says Hovander.
Kline has taken the tactical high ground. The chemistry between Hovander and the child is soft, relaxed. Harry, I’m afraid, will not fare so well.
She establishes quickly that a child of five has no concept of time or dates. Kimberly is unable to offer any assistance as to the time of death. All she can say is that when her mother began to argue and make noise it was still light outside.
Hovander fares better on spatial relationships, the geography of the crime scene. This comes in as it did in the earlier hearing. Kimberly was in her bedroom playing when the argument between her mother and whoever killed her started. It appears to have escalated quickly so that within what was probably no more than a couple of minutes the child became frightened by the volume of voices and something being thrown in the living room, then she slipped down the hall and into the closet.
“Did you see anything?” says Hovander.
To this she gets a shaking head, stern and adamant. The record is left to reflect that she did not.
“Did you see the other person there with your mother that night?”
“No.”
“But you heard his voice?”
“Objection.” Harry is doing this. We have decided that he will take the cross examinati
on of the child. Harry hasn’t been told why I suggested this, but I think he has guessed. Ever since Kimberly identified me as having been there that night, I have not wanted to tempt fate. In fact, I had considered absenting myself today, but decided to risk it. If I were not here, Acosta would ask questions.
“On what grounds do you object?” says Radovich.
“Assumes facts not in evidence,” says Harry. “The gender of the other person that night.”
“Sustained.”
“Kimberly, did you hear another voice that night besides your mother?” says Hovander.
She nods.
Radovich does the honors on this, directing the court reporter as to how the record should read.
“Was it a man’s voice or a lady’s voice?”
“A man.” She says this without hesitation, so that now I can assume whether true or not, she believes it. The power of suggestion.
There is some confusion here as the child alters her story several times, but the essentials are fixed. At some point after the fatal argument, Kimberly emerged from the closet and found her mother’s lifeless body on the floor, blood all around.
“I tried to wake her up,” she says. “But I couldn’t. So I got Binky.”
“Binky is your stuffed bear?” says Hovander.
“Uh huh.”
“And where did you find Binky?”
“By Mommy. On the floor.”
“What was Binky doing by Mommy?”
“I put him on the table when I came home from the baby-sitter.”
“Do you remember what time you came home from the baby-sitter?”
Kimberly looks at the ceiling, a screwed-up expression on her face. “I think it was ten o’clock. Maybe it was eight.” She pulls numbers from the air, leaving us to wonder if she is confusing the time with the size of a shoe or the age of a friend. To children of this age numbers are meaningless, and all interchangeable.
Hovander tries to square this away. Earlier testimony has already established that Brittany picked up her daughter from the baby-sitter just after five, and probably arrived back home sometime between five-thirty and six. She had been home from work earlier in the day, having taken the afternoon off for some unknown reason.
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