The Ophelia Cut

by John Lescroart

  “Thank you, counsel.” She turned to Hardy. “Counsel,” she said, “I’m going to allow you to add these names, but that’s all I’m saying right now, and I’ll tell you what: before any one of them gets on the witness stand, I’m going to want to hear a much more focused recitation of relevant testimony that they can give. Because, frankly, what you’ve told me so far is unconvincing, and if I had to decide now, I might just sustain Mr. Stier’s objections. Consider yourself on notice.”

  BUOYED BY HIS success, Hardy cautioned himself against complacency or overconfidence. After Dr. Paley was settled again in the witness chair, Hardy took an extra moment apparently studying his notes at the defense table. All business, he sipped from his water glass, looked neither at Wu nor Stier nor to the gallery, and finally stood to face his witness. “Dr. Paley,” he began, “would you mind starting out by giving the jury the definition, as it were, of eyewitness identification and perception?”

  “Certainly.” Paley had lost none of his energy or enthusiasm over lunch. “Let me say to begin with that, obvious as it may be, you can’t identify someone unless you first observe him. Once you’ve done that, then eyewitness identification is the ability to pick out the very same person you saw—that is, observed—before.”

  “You say ‘the very same person,’ Doctor. Are you trying to distinguish that very same person from some other person?”

  “Excellent question, Mr. Hardy. Excellent.” As well it should be, Hardy thought; they’d rehearsed it enough, to the tune of about a thousand dollars. “What I am trying to distinguish is what that so-called very same person is not. He is not, for example, somebody whom you assume to be the person; nor is he someone who you think other people may think is the person. He’s not somebody who somebody else told you was the person, or who the police believe was the person, or who a photograph suggests is the person. All of the above are not eyewitness identification.”

  “And why not, Doctor?”

  “Because they all have to do with assumptions and inferences. And eyewitness ID is the demonstrated ability, based on the memory of what you’ve observed, to pick out the very same person you saw before.”

  “Is that difficult?”

  “It can be, yes.”

  “Are there specific conditions under which it can be more difficult?”

  “Absolutely.”

  “Such as?”

  “Well, if it’s dark or far away, or if there’s a lot of other stuff going on or too many people around. And if I might just add something . . .”

  “Go ahead.”

  “The other thing is that we’ve all got opinions about how eyewitness identification works, but the fact is that when we compare how we think it works and how it actually works, we’re often way off. It doesn’t happen the way lots of folks think it does. Studies over the past decades have proved that we don’t do it nearly as well as we think we do.”

  For the next twenty minutes, under Hardy’s careful questioning, the doctor homed in on this point—we are not video cameras; we are severely influenced by other observations as well as by what else is going on at the time of the observation. And not only are the original observations often impacted by surrounding events; our fragile memories become mixed up during the act of recovery, and the observation degrades because of the other information in our memory—assumptions and things we know from other sources, many of which we never saw.

  Again, the information could have been sleep-inducing, but Paley managed to drop a few bombs that shook up not just the jury but the entire courtroom.

  “You know, everybody uses confidence as a measure of how accurate we are, but in hundreds of studies—some of them right here in this briefcase, if you’d like to see them—there is no relationship at all. You can be one hundred percent certain of what you saw, would swear to it, and still be one hundred percent wrong.”

  And: “No matter how detailed, vivid, and strong your memories are, they can be completely erroneous.”

  Particularly: “If there are weapons involved. People who are holding weapons are seen to be much bigger. A young man who is five feet eight and holding a gun could easily, and has often, been described as six feet two.”

  And: “Our certainty increases every time we repeat ourselves. We more readily commit to saying what we’ve said before, rather than what we have seen. And this isn’t about people lying. People honestly tell you what they think they remember, and they are just wrong. Eyewitness IDs work in such a way that people can tell you exactly what they saw with confidence and in great detail and be totally mistaken.”

  After the afternoon break, Hardy asked, “Doctor, do you cite studies about people who have been convicted of a crime and later found innocent because of something like DNA evidence—in other words, where there was no longer any doubt that they were innocent; they were convicted mostly on eyewitness evidence—what percent of those erroneous convictions were based on erroneous eyewitness IDs?”

  “Ninety percent.”

  At this statistic, Gomez had to gavel the courtroom into silence.

  “Let’s go the other way,” Hardy said. “Do you have any studies where the actual bad guy was shown to the victim and the victim let that person go?”

  “Yes.”

  “How many studies?”

  “Again, hundreds.”

  “Doctor, does it matter who asks a witness for his or her ID? For example, if a policeman asks, would that be different than, say, a teacher in an academic study?”

  “Oh, definitely. Most people overwhelmingly believe that the police wouldn’t waste your time showing you an innocent person. In fact”—Paley again went on without any prodding—“many studies show that eyewitnesses can be influenced merely by a policeman knowing the expected, or right, answer. That’s why a policeman who shows photographs should not know which is the suspect in a case. Eyewitnesses pick up cues that they’re not even aware of. Plus, if you pick someone out in an identification procedure and then see a similar face in another procedure, you’re going to pick out the first face again because it has more familiarity than any of the others.”

  “It sounds to me, Doctor,” Hardy said, “that in spite of our belief to the contrary, eyewitness identification is not particularly accurate. Is that true?”

  Paley had no doubt. “It is the least reliable form of identification.”

  “And in-court identification? That is, where an eyewitness points to a defendant sitting in a courtroom? What is the degree of reliability in that scenario?”

  “There is no reliability at all. By that time, the witness knows what is expected. He knows the defendant is the man in court sitting next to his lawyer and that he is supposed to identify him. He feels enormous pressure to make the ID whether or not he is certain in his own mind that it is correct.”

  Hardy stole a glance at the courtroom’s clock. They had only a few minutes until the evening adjournment. “Doctor,” he asked, “is there anything else you think is important about eyewitness identification that you would like to tell the court?”

  Paley glanced at the jury box and decided to reward them with a small joke. “I’ve got at least another day’s worth, if you’ve got the time.”

  Hardy let a small ripple of chuckles flow across the courtroom. “Let’s just stick to the important stuff,” he said.

  “Well,” Paley replied, “there are two points that are unquestionably important. The first is called the cross-racial effect.” The picture of confidence, he looked over at the jury, out to the gallery. “Although it sounds like a slur of some kind, it is not. It’s not an insult, either. It’s not even a racist statement. What it relates to is that if someone looks different, we tend to label them. We get details of their faces less thoroughly and are less accurate picking them out later.”

  “Is this always true, Doctor?”

  “Yes. Even if you’ve had a lot of experience with the different look. There was a great study in South Africa where the white people had a difficult
time picking out individual black people, even though blacks are the majority culture in South Africa. Anyway, there’s one, the cross-racial effect. It’s real and it happens.

  “The second thing I’d guess is important is that sometimes we’ve seen a face but don’t know where—maybe the clerk in our grocery store—and that person is among the pool of potential suspects whom an eyewitness will be asked to identify. Almost always, the grocery clerk will get picked out as the suspect by an eyewitness. This is known as the innocent-bystander effect. It works on the basis of unconscious transference.”

  “Doctor, like everything else you’ve told us today, that sounds fascinating. But the judge has asked us to be aware of the clock. We’re getting toward the end of the day, and as you know, we have prepared a video for the jury’s benefit. Your Honor, if it please the court, we’ll need a few minutes to set up.”

  HARDY DIDN’T NORMALLY like to use audiovisuals in the courtroom. They were rarely conducive to the introduction of evidence; they were subject to all kinds of editing that cast doubt on whatever point they were trying to prove; there were always foundational issues—where the tape or CD had been stored, for how long, and by whom in an unbroken chain; and in the dark courtroom in the late afternoon, even the best of them had been known to put jurors to sleep.

  But Paley had so blown Hardy’s mind with the three-minute video they were about to show that he couldn’t resist. They had to play it in its entirety so that Stier and Gomez could both approve it. Stier had vehemently objected, but Hardy had won the argument and thought it would be one of the high points of the defense. To Hardy it was brand-new, though both Stier and Gomez had apparently heard of it on YouTube. Neither had seen it before Hardy brought it into the judge’s chambers. So some of the jury might have seen it or heard of it as well. Nevertheless, Hardy was playing for one vote to acquit, one person to convince, and if even one juror had the same reaction he’d had, he thought it was worth the effort.

  Now Paley was on the stand, and the television they’d set up was facing the jurors. Before they darkened the courtroom, Hardy laid his foundation. “Doctor, what is this exhibit designed to demonstrate?”

  Paley: “Subjects are asked to count how many times the players wearing white pass the ball.”

  Hardy hit play.

  Six young women were lined up in casual athletic clothing, three wearing black jerseys, three wearing white ones. Each team had one ball, and the girls started to bounce or throw it to their team members. After about twenty-five seconds, the screen went black, and Hardy said, “Doctor, what is the correct answer?”

  Paley replied, “The correct answer is sixteen passes, but you asked earlier what the purpose of the demonstration was. This film is designed to demonstrate that subjects asked to concentrate on one thing often overlook highly salient information.”

  “How does it do that, Doctor?”

  “It does that because most people say they did not see the gorilla in the film.”

  An audible gasp resounded in the courtroom, followed by a light chorus of nervous laughter.

  Hardy said, “Doctor. Are you kidding about the gorilla?”

  “No, Mr. Hardy, I am not. This is not a joke. This is a widely circulated video found not only in psychology classes but on such popular media as YouTube. We have been talking all day about eyewitness testimony and about observation, and you’ve all just had a demonstration on the reliability of your own eyewitness testimony, especially when the mind is concentrating on something else, such as the presence of a weapon or how many times the girls wearing white passed the ball.

  “Now,” Paley continued, “let’s replay the tape and take another look at what you’ve just seen. Knowing about the gorilla this time, see if you also notice that the curtain in the background changed color or that one of the black-shirt-team girls left the game at about the same time that the gorilla came on.”

  Hardy pressed the play button again, Paley testifying that about 50 percent of people viewing the video for the first time did not notice the gorilla. As the game progressed the second time around and the gorilla came on at the same place, a great deal more laughter broke out in the courtroom—no doubt, Hardy thought, people seeing the damn thing for the first time.

  When the video ended again, Paley said, “When you’re looking for a gorilla, you often miss other unexpected events.”

  “So, Doctor, if people were focusing on a weapon, such as a club, do your studies indicate that they would be unreliable in processing and recollecting other observations—for example, the facial features of the person holding such a club?”

  “Absolutely,” Paley said. “Studies show that an ID under those conditions would not be reliable.”

  “Thank you, Doctor.” Hardy looked up at the bench. “Your Honor, this concludes my direct.”

  29

  FARRELL HAD WANTED to sit in on the opening statements, and last week he had done so, but he wasn’t interested in listening to Paley elucidate the many ways that an eyewitness was a worthless redundancy as far as identification was concerned. Farrell had hired Dr. Paley more than once in his earlier defense practice, and he had no doubt that, if anything, the tireless and enthusiastic expert witness would have upped his game.

  Fortunately, the familiarity gave him an opportunity: if you know what your opponent will say, you should be able to turn that to an advantage. And Farrell, after the end run around his position orchestrated by Lapeer, needed to make a strong prosecutorial showing in this case. It wasn’t so much that he wanted to see Moses McGuire convicted—after all, he had known and liked the bartender for over twenty years. But Farrell’s ability to function in his job and, not incidentally, to get himself reelected, would depend on his ability to retain the loyalty and confidence of his troops, both of which had suffered a tremendous hit after the Ramey warrant.

  Now, a little after five o’clock, a strangely unfamiliar Lars Gunderson sat on the couch across from him as they ticked off the points that Stier would use tomorrow in his cross-examination of Dr. Paley. Farrell had suggested that Gunderson pull the transcripts of several other trials in which Paley had testified. Taken together, those transcripts were a road map pointing the way to lines of questioning that would help to negate or severely deflate the claims that the jury had heard.

  But first, Farrell had to know. “Lars, is it me, or are you sporting some kind of a different look?”

  The young prosecutor broke a smile. “I cut my hair and shaved off my mustache. Paul wanted a different approach for the jury.”

  “Ahh, there it is. Never let it be said that I’m not observant.”

  “No, sir. Never entered my mind.”

  “I had a ponytail for a couple of years early in my career. Did you know that?”

  “I didn’t.”

  “It was meant to be a statement. I decided I wasn’t going to cut my hair until something—almost anything—made sense.”

  “How’d that go?”

  “As I said, a couple of years went by.”

  “Was there one thing that finally happened?”

  “You mean made sense? Not really. My hair would be all the way down to my ass if I’d stuck to my guns. But you’ve got to remember, I was a defense guy in those days, so my clients tended to identify with me more than with the suits who were trying to put ’em in jail.”

  Gunderson took a beat. “If I could ask, how are you doing with this McGuire thing?”

  “Me knowing him and all?”

  “Yeah.”

  “He did the crime, he does the time.”

  “Really? Just like that?”

  Farrell sat with the question, then got up from the couch, picked up a Nerf basketball, and shot it at the basket over by the law books. He missed by a couple of feet. “The corollary is that if he didn’t do the crime, he walks. Personally, I hope he walks. I hope he didn’t kill that kid. But if he did . . .” He shrugged. “It’s not as personal as people made it seem.”

  “You mea
n Lapeer?”

  Another shrug. “She had her priorities. She could have come to me and sold her pitch. But she never gave me any pitch, which is where she went wrong.”

  “So you think she was wrong?”

  “I just said that, didn’t I?”

  “So McGuire’s innocent?”

  “Not at all. I hope he’s innocent. I think he’s guilty as sin. Although, vigilante at heart that I am, I kind of understand where he was coming from. Tell no one.”

  “Right. Of course.”

  “So? We good? Back to Dr. Paley? Ream him a new one?”

  Gunderson nodded. “Back at him.”

  AT APPROXIMATELY THE same time, Dismas Hardy was in his office, talking on the phone with his investigator, Wyatt Hunt. “At this point,” he was saying, “it’s open season on both Lo and Goodman. We know absolutely nothing about either of them in terms of Jessup, other than he worked for one of them.”

  “What am I looking for, specifically?”

  “Some kind of leverage he might have had.”

  “Is it my imagination, or do I keep coming back to the word ‘specific’?”

  “I know. I apologize for that, but I need to find another plausible reason for somebody to want Jessup dead.”

  “You realize that would be a pretty big reason, right? I mean, we’re talking a motive for making somebody dead, which is not so easy to keep hidden. As of now, there’s no sign of whatever it might be.”

  “Right.”

  “Or evidence.”

  “We don’t have to prove anything, Wyatt. It just has to be marginally plausible.”

  “And you think a city supervisor looks like promising hunting grounds? Don’t get me wrong, I’d love the work, because work is always good, but Goodman is more or less a pillar of the community, is he not? And isn’t it pretty well established that the rape was the motive? Mose’s motive, I mean.”