Here, for the first time, Schermer’s face creased into something like a frown. “I’m not sure what you mean.”
“Well, I mean you take a certain weight amount of a raw product—coffee in this case—and you do an analysis that shows it takes, say, a pound of coffee to make a certain amount of cups, and then you deduce that the business didn’t buy enough raw coffee to make as many cups as it claimed it sold. Isn’t that the basic idea?”
“Basically, yes.”
“Well, then, can we assume that this type of analysis is a standard tool in the industry?”
“In a general way, yes.”
“With other products, you mean?”
“Yes.”
“How about with coffee? Is this a test with a long history of analysis and comparison with other similar tests?”
“Well, no. This was specific to this one business. BBW.”
“Specific to this one business? Do you mean to say that other licensed and accredited forensics accountants such as yourself, and in fact the organization to which you belong, have not established benchmarks to measure the reliability of these analyses?”
“Well, no, not exactly, but—”
“No is sufficient, thank you, Mr. Schermer. Now, can you please tell the jury a little about the methodology you employed to measure the amount of coffee needed to make a cup at BBW?”
Finally given a chance to simply discourse on his specialty again, Schermer leaned back in the chair and faced the panel. “Well, I gathered information from other coffee shops in the city, both chain and individually owned, and took the average of the number of cups of coffee produced from every hundred pounds of beans.”
“How many coffee shops did you use for your comparison?”
“Ten.”
“And how many different kinds of beans were represented in your answer?”
“I don’t know what you mean.”
“Well, beans come from a lot of different places. South America, Africa, Jamaica, and so on. So what kinds of beans were represented in your sample?”
“As I recall, most of them were from Colombia.”
“And is that the sole source of BBW’s beans, Colombia?”
“No, I don’t think so.”
“They came from all over the world, did they not?”
“Yes, I believe so.”
“All right. And do you know how many bags were delivered from all over the world over the course of the fiscal year to BBW?”
“I don’t know that, exactly. Perhaps hundreds.”
“But several thousand pounds of coffee, wouldn’t you say?”
“Yes, at least.”
“And did you test to make sure that all of that coffee had the same density? That is, approximate number of beans per pound?”
“Uh, no.”
“So the representative sample you used for your analysis might have been stores that used more or fewer beans to make a cup, isn’t that true?”
“I guess so. Yes.”
“And in fact, BBW was a very popular coffeehouse, was it not?”
“Yes.”
“Could that popularity have been based on the flavor of its coffee? That is, that its coffee was stronger or more mild than the shops you used in your sample?”
“I have no way of knowing that.”
“All right, then.” Hardy glanced over to the jury, all of whom were with him, following the cross-examination with none of the more common postlunch torpor. “Let’s talk for a minute, if we may, about the coffee made from these beans. Is there a standard BBW uses for various strengths of coffee? Strong? Medium? Weak?”
“I used medium, which is their house blend strength.”
“But do they serve other coffees of different strengths?”
“Yes.”
“Both stronger and weaker?”
“Yes, which is why I used medium, to be about average.”
“But do you in fact know the percentage of coffee actually brewed there that is weak, medium, or strong?”
Schermer took a breath, no longer enjoying himself at all. “No.”
“And what about espresso?”
“What about it?”
“It was a rather large percentage of the coffee sold at BBW, was it not?”
“Yes, it was.”
“Do you know the exact percentage, Mr. Schermer?”
“No.”
“And espresso is roasted differently than other blends of coffee, is it not?”
“Yes.”
Hardy, hammering the man mercilessly, decided to back off for a moment lest to the jury he come across as unsympathetic. He walked back to his desk, took a sip of water, gave half a nod first to his client and then to Joel Townshend and Harlen Fisk, sitting next to one another in the front row. He pulled his legal pad over and pretended to read from it, then turned and came back to his place in the center of the courtroom.
“Mr. Schermer, at the beginning of this cross-examination testimony, you said that your analysis of raw coffee bought versus coffee served was merely an estimate with a margin for error, isn’t that true?”
“Yes.”
“But there is no industry standard that defines an acceptable margin for error for an analysis of coffee shops, is there? Not for this particular comparison?”
“Correct.”
“Would you care now to estimate for the jury, and after the questions I’ve just put to you, how high the margin for error could go on an analysis such as this, with different density beans, and differing strengths of various coffee drinks?”
“I don’t know if I could say.”
“Ten percent? Twenty percent?”
“Yes. Yes, I suppose.”
“In fact, since there is no industry standard on this margin for error for this particular test, it could even be higher, could it not?”
“In theory, I suppose it could.”
“How about fifty percent? Could it be as much as that?”
“Well, I really don’t think so.”
“You don’t think so?” Hardy repeated with just enough emphasis on think to make his point to the jury.
“That’s correct. I don’t think so.”
“Okay, then let’s go with the twenty percent that you admit is a possible margin of error. Now, if I could just ask you for a moment to revisit the actual income numbers you gave in your direct testimony.” Hardy went back to his desk quickly and this time brought back with him his yellow legal pad. “You said the amount of raw coffee bought should have produced income from coffee drinks sold of three hundred and seventy thousand dollars, and instead BBW’s books showed an income of four hundred sixty-two thousand dollars, isn’t that right?”
“Yes.”
“And would you agree, sir, that twenty percent of three hundred seventy thousand dollars—the margin for error we’ve been discussing—is seventy-four thousand dollars?”
“That sounds right.”
“It is right, sir. Which means that, according to your own calculations, BBW’s coffee drink income from raw coffee bought could have easily been as high as four hundred forty-four thousand dollars, or only sixteen thousand dollars short of the reported income, isn’t that right?”
Thoroughly dispirited by now, Schermer stared down at the floor in front of him. “It sounds like it.”
“Well, Mr. Schermer,” Hardy said, “given your direct testimony outlining sixty-seven simple accounting errors, does a sixteen-thousand-dollar discrepancy on a gross income of between three and four hundred thousand dollars strike you now as necessarily indicative of money laundering?”
Stier started to rise, but before he could object, the witness replied. “Not necessarily, no.”
The judge let the answer stand, and Hardy whirled, smiling. “No further questions.” Stier had no redirect.
“Mr. Schermer,” Braun said, “you may step down. Mr. Stier, your next witness.”
Stier threw a look over at Hardy, back up to the judge. “Your Honor, the Pe
ople rest.”
Braun nodded once and looked up. “Very well. Mr. Hardy, I believe you’ll have a motion?”
“Yes, Your Honor.”
“All right. Ladies and gentlemen of the jury, I’m going to give you a longer recess than usual. Please remember my admonition not to form or express any opinion about the case or discuss it among yourselves or with anyone else until the matter is submitted to you. Come back in forty-five minutes.”
Ten minutes later, with Braun back on the bench, Hardy made his 1118.1—his motion to dismiss the charges on both Vogler and Preslee. Normally, this is a pro forma motion made at the end of the prosecution case in every criminal trial. But at least as to the Preslee count, Hardy actually thought he might have something to talk about.
“Your Honor,” he said, “no reasonable juror could possibly convict my client, particularly of the Levon Preslee murder.”
Stier defended the charges. “In spite of Inspector Schiff’s admission about the lack of physical evidence in the Preslee slaying, there is no net change in the prosecution case. Admittedly, it is light on physical evidence, but as you know there are other kinds of evidence, and they can be compelling. Eyewitness testimony, for example. Consciousness of guilt. This is circumstantial but compelling evidence.”
“Yes, Your Honor. But the burden of proof is on the prosecution to prove not just that Maya was in the hallway, but that she was inside the apartment, and more than that, that when she was in there she killed Levon Preslee. They have nothing remotely approaching that. You don’t just convict the person with a motive who happens to be closest to the scene of the crime, especially in a case like this where you have no idea who else might have had a motive. Or, for that matter, who else had been inside. I don’t have to prove that Maya wasn’t inside that apartment. Mr. Stier has to prove she was. And there simply is no such proof. Letting the jury consider this evidence in this count would not be only an error with respect to the Levon Preslee charge, it would inevitably taint any verdict on the Vogler count.”
Hardy was pushing it pretty hard here. Normally a judge could figure that if the evidence was really as weak as the defense claimed, the jury would simply acquit as to that count, and the defense would have nothing to appeal. But Hardy was taking that out away from Braun. By tying the charges together Hardy was arguing that the judge would be tainting any verdict on Vogler, even if the jury acquitted on Preslee.
So Braun was actually going to have to make this decision or expect to hear about it on appeal later. Hardy had her in a corner and she knew it. She took in the situation with a reptilian silence, her eyes closing to mere slits. Turning to her recorder, she said, “Ann, I’m hoping you got all that.”
“Yes, Your Honor.”
“Mr. Stier. Comment?”
“Your Honor, the prosecution rejects Mr. Hardy’s efforts to tie these counts together like that. Each count stands on its own, each count is supported by the evidence, and that’s how the court should rule.”
“Nobody has put Maya inside the place, Your Honor,” Hardy said. “You can’t ask the jury to decide she was there if there’s nothing putting her there.”
“I can do what I want in my courtroom, Mr. Hardy. I could get up on my desk and do a tap dance if I want to.”
“Yes, of course, Your Honor, I didn’t mean you couldn’t—”
“That’s what you said, Mr. Hardy.”
“I’m sorry, Your Honor. I misspoke.”
“Apology noted.” And now Braun surprised him. “All right. Mr. Hardy, you raise a colorable point. Give me a moment, please.” She came forward and put her elbows onto her desk, her fingers templed over her nose, her eyes closed. Finally, her shoulders heaved and she brought her head back up. “This issue is too complex to decide on the spur of the moment. Court is in recess for another half hour. I’ll have a decision for you before the jury is seated again.”
36
Hardy had a message on his cell phone that Craig Chiurco was outside in the hall, having escorted Lori Bradford down on her subpoena as a courtesy—service with a smile from Freeman, Farrell, Hardy & Roake.
Now, with the court in recess, Hardy walked out through the gallery, accepting congratulations from Joel and Harlen and some of his associates who’d shown up as they usually did when one of the bosses was in a big trial, to see how it was done. All and sundry agreed that he had just kicked some serious ass with Schermer, and between that cross-examination, his lunch at Sam’s with Glitsky, and Braun’s unexpected consideration of his motion to dismiss, Hardy had to fight to keep himself from getting cocky.
It still and always was going to come down to the jury, and without another suspect for them to even consider, Maya remained in a precarious place. Hardy had to get Paco or someone like him into the testimony somehow, and now with Ruiz dead, that was going to be problematic. Maya’s purported knowledge of the man was hearsay anyway, and even if it weren’t, she certainly couldn’t put him at BBW or with either of the victims.
Outside, in the hallway, Chiurco sat on one of the wooden benches with a white-haired woman dressed in a light blue pantsuit. The two appeared to be in a somewhat animated discussion, enjoying each other’s company, as Hardy approached. Seeing him, Chiurco got up and gave him his signed statement from their conversation of the night before, then touched the woman’s arm and introduced her.
“Thank you for coming down on such short notice,” Hardy said.
“Thanks to this young man for bringing me.”
Hardy grinned. “I’ll see he gets a raise right away.”
“And did you say Dismas?” she asked. “Dismas? The good thief ?”
“That’s him, though too few people seem to know it.”
“I don’t believe I’ve ever actually known a Dismas.”
“Well, you do now. I hope it’s good for you.”
“You’re cute,” she said.
“So are you.” Hardy sat down next to her. “Has Craig here explained what we’d like to talk to you about in the courtroom?”
“What I saw, or heard, that morning.”
“You remember the date, don’t you?”
“Of course. October twenty-seventh, two thousand seven, to be exact.”
“Exact is good. We like exact.”
Her eyes brightened with the adventure. “And two shots. One at six oh eight or nine and one at six ten.”
“Very good.” He leaned in toward her. “I was hoping to call you to be a witness pretty much right away, if that’s all right with you.”
“Of course it’s all right with me. That’s why I’m here.”
“Good. Now, I’ve already heard what you said in your talk with Mr. Hunt, and that will be the basis of your testimony, but if you don’t mind, maybe we could just take a minute here before we go inside and run over some details?”
“Sure, of course,” she said. “That would be fine.”
In spite of the glimmer of hope he’d begun to entertain about his motion to dismiss, Hardy wasn’t particularly shocked, nor even greatly disappointed, when Braun came back to the bench and ruled against him, denying his motion in its entirety.
Still, he was buoyed by his belief that Lori Bradford was going to be an important and powerful witness, offering a completely alternative version of the bare facts of the case. He had given some thought to the phraseology and tenor of his opening questions, wanting not only to get to this witness’s information but to alert the jury to the homicide inspectors’ wily and discreditable ways.
Now, already having established a solid rapport with her, one that he hoped the jury would recognize as between equals—as opposed to a young man condescending to a senile witness—he began his questioning. “Mrs. Bradford, where do you live?”
“I live in a second-story apartment on Ashbury Street here in the city, on the west side of the street, right up from Haight. It’s also,” she added, coached by Hardy, “right across the street from the alley that runs behind Bay Beans.”
�
�Can you see that alley from your apartment?”
“The first twenty or thirty feet of it, out the living room and dining room windows, yes.”
“Now, Mrs. Bradford, do you remember anything unusual and specific about the morning of Saturday, October twenty-seventh?”
“Yes.”
“And what was that?”
“At a few minutes after six o’clock I was in bed in the back of the apartment, but already awake for the day, when I heard a loud report, like a firecracker, although for some reason I remember thinking that it might be a gunshot. So I got up and was in the hallway going to the front windows and then—bang!—there was another one. About a minute later.”
“And what did you do then?”
“I got to the window and looked down into the street and across to the alley.”
“And did you see anything unusual down there?”
“No. Nothing. It was still pretty dark out.”
“Did you call nine one one?”
“Not then. No. There didn’t seem to be any emergency. It was just the two noises. Although, of course, when the police cars started getting there, I realized something must have happened. By then it was too late to call nine one one.”
“But you did eventually call the police, did you not?”
“Yes. A couple of days later.”
“And why was that? The delay, I mean?”
“Well, mostly because the news reports were all saying that there had only been one shot, and I thought they’d want to know that I’d heard two of them.”
“You heard two shots?”
“Yes.” Lori, God bless her, added the word Hardy had recommended. “Definitely.”
Raising his eyebrows for the jury’s benefit, he went on. “And so you called the police to tell them about this information?”
“Yes.”
“And did you speak to some inspectors?”
“Yes. Two of them came by the apartment and we talked about it.”
“You told them about the two shots, did you?”
“Yes, I did.”
“And what was their comment about that, if any?”
Hardy 13 - Plague of Secrets, A Page 34
