Hardy broke a grin. “I thought you’d never ask.”
25
“Sergeant Cuneo, you testified in front of the grand jury before this, did you not?”
“Yes, sir.”
“And you were under oath?”
“Yes, sir.”
“And where was that?”
“Upstairs in the grand jury room.”
“How long did that testimony last?”
Cuneo was bouncing already, slight but visible tremors erupting through his shoulders every three to five seconds. “I don’t know exactly. I’d guess something like three hours.”
“Now, Sergeant, in this three-hour testimony, did you talk about your initial visit to Catherine Hanover’s house?”
“Yes.”
“Did you make any mention of Catherine making it clear to you that she wanted you to stay for dinner?”
“No. I don’t believe I did.”
“No, you don’t believe you did.” Hardy went back to the defense table, gave a confident nod to Catherine, and picked up some sheets of paper that had been stapled together. Walking back up to the witness box, he handed the stack to Cuneo. “Do you recognize these documents, Sergeant?”
He flipped quickly through the pages. “These are copies of my reports on this case.”
“Of your interviews with Catherine Hanover and others, is that correct?”
“Yes.”
“All right. Now, Sergeant, how long have you been a policeman?”
Hardy’s change in direction caused Cuneo a moment’s pause. His eyes flicked over to Rosen, then back to Hardy. “Sixteen years.”
“So you’ve written reports such as the ones you now hold in your hand many times, yes?”
“Yes, of course.”
“And the purpose of these reports is to memorialize evidence, is that right?”
“Yes.”
“Good. Now, when you write up these reports, you try not to leave out important facts, isn’t that true?”
Cuneo’s shoulders seemed to be closing in around him, his neck sinking down into them. He was closing down defensively. His next answer came as a brusque nod.
“I’m sorry, Sergeant,” Hardy said. “Was that a yes? You would never knowingly leave an important fact out of one of your formal police reports?”
Another nod.
This time Braun leaned over from the podium. “Answer the questions with words, Sergeant. Do you need the question read back again?”
“No, Your Honor.” He leveled a malevolent glare at Hardy. “Yes, I try to make my reports accurate.”
To keep the press on, Hardy ignored the answer. Instead, he repeated his exact question, using the precise same rhythm, tone and level of voice. It highlighted the fact that Cuneo had not answered the question the first time. “You would never knowingly leave an important fact out of one of your formal police reports?”
“No.”
“Thank you. Now. Did you know that you were going to testify in this case?”
“Of course.”
“And did you know that you would be asked about the reports you submitted?”
“Yes.”
“And that others would rely upon the accuracy of these reports?”
“Yes.”
“So, as you’ve testified was your habit and inclination, you tried to make your reports both accurate and complete, is that right?” Cuneo continued to wilt. If Hardy wasn’t having such a good time, he might have let a little sympathy creep into him and let up a bit. But the thought never occurred to him. “Accurate and complete,” he said, “and never more so than in the case of a homicide, correct?”
“Yes.”
Pulling a page from Rosen’s book, Hardy went to his table and drank some water. Returning to his position in front of Cuneo, he started in again. “Sergeant, when you conducted your interview with my client, did you tape-record it?”
“No, I did not.”
“So the only record of your conversation with my client is in these reports? These complete and accurate reports, is that so?”
“Yes, I suppose it is.”
“All right. Then, please point out for the jury where in your report you state that Catherine asked you to dinner, or came on to you in any way.”
Cuneo’s shoulders twitched. He stretched his neck, flicked his eyes to Rosen’s table, cleared his throat. “I did not include it in the report.”
“No, sir,” Hardy said. “No, you did not.”
Hardy went back to his desk, returned to the witness stand with another bunch of papers—Cuneo’s grand jury testimony. Same questions, same answers. No, Cuneo hadn’t mentioned anything about Catherine Hanover coming on to him, asking him to dinner, making inappropriate small talk. Hardy allowed surprise to play about his face for the jury to see. He hoped that by now that the word had spread to the panel that this witness was the reason that they wouldn’t be watching any television for the next few days, why they would be locked up in their hotel rooms. He hoped they were primed to hate him. And he was going to give them more.
“Detective Cuneo,” he said, “when Deputy Chief Glitsky conveyed to you my client’s complaint about your conduct, you denied that any such exchange ever took place, didn’t you?”
“Yes, I did. I didn’t want to . . .”
“Thank you. In fact, Sergeant, the very first time you ever claimed that my client made an improper sexual advance to you was after she made her complaint to Glitsky, isn’t that a fact?”
“I don’t know. I’m not sure of the exact timing.”
“All right, then, how about the first time on the record that you mentioned her invitation to dinner? Wasn’t it when you were on the stand here just before this cross-examination?”
“It may have been.”
“Yes or no, Sergeant.”
“I believe so.”
“I’ll take that as a yes. When you were on the stand under oath. Like you were under oath at the grand jury.”
“Your Honor. Objection! Badgering the witness.”
Braun nodded. “All right. Sustained. Mr. Hardy, I’m sure Sergeant Cuneo realizes when he is under oath.”
“Thank you, Your Honor. I just wanted to make sure.”
“Your Honor!” Rosen again.
“Sustained.” Braun glared down from the bench. “Don’t get cute, Mr. Hardy. I’m warning you.”
Hardy, straight-faced. “I apologize, Your Honor.” He came back to the witness. “So, Sergeant, did you remember the alleged invitation before you took the stand?”
“Of course I remembered it.”
“And yet you did not mention it? Why was that?”
“I didn’t think it mattered.”
“You didn’t think it mattered?”
“I didn’t think it would be part of the case. Besides, nobody asked me about it.”
“That might explain why it didn’t come up in your three-hour testimony. By the way, there was no defense lawyer at the grand jury, was there?”
“No.”
“No one to ask you the sort of questions I’m asking now?” Hardy didn’t wait for the answer. “No one to challenge your account of what took place?”
“No.”
“Would it be fair to say, Sergeant, that you could talk about anything you wanted to the grand jury and no one would hear the other side of the story? Could it be, Sergeant, that you never brought up the incident because Catherine Hanover did not, in fact, extend any such invitation?”
“No. She did.”
“She did? Can you recall her exact wording?”
“I don’t think so. It was almost a year ago. She asked me if I liked homemade pasta and said her husband wasn’t going to be home.”
“Ah. Her husband. Since he was the son of the deceased, weren’t you interested in his whereabouts?”
“Yes, of course.”
“Since you’ve told the jury that everyone was a suspect at the time, was Will Hanover a potential suspect as well?”
“And did you ask his wife where he was?”
The questions were flying fast now, in a rhythm, and Cuneo answered without any forethought. “Yes.”
“And wasn’t it this, Sergeant,” Hardy continued, “your question about her husband’s whereabouts, and not an improper advance, that prompted Catherine’s admission that her husband was gone and wouldn’t be home for a few more days?”
Suddenly Cuneo straightened up in the witness box. “I took it as an improper advance.”
“Obviously you did. Was that because this kind of thing had happened to you before?”
Rosen must have been waiting for his chance to break it up, and this was it. “Objection!” His voice had taken on some heat. “Irrelevant.”
But Hardy wasn’t going to let this go without a fight. “Not at all, Your Honor,” he jumped in. “This jury needs to hear if other female witnesses have found Sergeant Cuneo irresistible.”
“Your Honor!” Rosen was frankly booming now, outraged anew. “I object!”
Bam! Bam! Bam! Braun’s gavel crashed down again and again. “Counsel! Counsel, come to order! Both of you approach the bench.” When they were before her, she fixed them with a frozen gaze. “That’s it from both of you. Last warning. Clear?”
It might be clear, but that wasn’t the point to Rosen. “Your Honor,” he began, “this line of questioning . . .”
“I heard you, Mr. Rosen. I’m going to sustain your objection and instruct the jury to disregard any innuendo contained in the question. Mr. Hardy, this is my second warning to you in the last ten minutes. There won’t be a third. Now we’re going to take a short break and let everybody calm down.” She looked over the lawyers’ heads to the gallery, slammed down her gavel again. “Five-minute recess,” she said.
Hardy hated to leave off on the sexual harassment, but he knew he’d be able to come back to it. Meanwhile, he’d soon be talking to eyewitnesses who’d identified Catherine, and the jury needed to understand how Cuneo’s methods in securing those identifications had been flawed. So he walked back to his table and picked up a small manila folder.
It looked like the kind you could get in any office-supply store, but one side had six holes cut in it. Through the holes you could see six color photos, three on top, three on the bottom. Each was a front mug shot-style color likeness of a young woman’s face. The women were all brunette, all of a similar age and hairstyle. None wore jewelry, none were smiling or had their mouths open. There was no writing. Nothing distinguished one photo from the others except the facial features of the women depicted. One of the women was Catherine.
“Now, Inspector,” he began, “I’d like you to take a look at what I’m about to present to you and describe it for the jury.”
Taking the folder in his hand, Cuneo opened it, glanced at the plastic pages inside, then closed it up and faced the jury. “It’s a folder used to hold photographs.”
“Have you ever used something like this in your work, Inspector?”
“Sure. All the time.”
“In fact, this sort of display is used so commonly that it has a nickname, doesn’t it?”
“We call it a six-pack.”
“Why is that?”
“Because each page holds six pictures in the slots.”
“Not just six pictures, Inspector, but six photos as similar as possible to one another, right?”
“Yes.”
“Sergeant, in your career as a homicide inspector, in roughly what percentage of your cases have you employed the use of a six-pack to assist you in obtaining identifications?”
Cuneo again looked at Rosen, but this time there was no help. “I don’t know exactly,” he said.
“Roughly,” Hardy repeated. “Fifty percent, sixty percent?”
“Maybe that much, yeah.”
“More than that? Eighty percent?”
“Your Honor! The witness says he doesn’t know.”
But Braun shook her head. “Overruled. Give us an estimate, Inspector.”
“All right. Say eight out of ten.”
“So a great majority of the time. And a hundred percent of the time when the ID is in doubt, correct?”
“Yes.”
“Now, Inspector, can you explain to the jury why, in the great majority of cases, you would use six photographs of similar-looking individuals to positively identify a suspect, as opposed to simply showing the eyewitness a picture of that suspect and asking if it’s the same person they saw commit the crime?”
Cuneo hated it and was stalling, trying to frame some kind of response. Hardy jumped him. “It’s to be sure the witness can really make an ID, right? That he can pick out the suspect from similar individuals.”
“That would be one reason.”
“And another would be to protect against the witness feeling pressured by police to agree that the one photograph they’re shown is, in fact, the suspect?”
“That might be one reason.”
“Can you give us another, Inspector?”
Cuneo rolled his shoulders, crossed his legs. “Not off the top of my head.”
“So at least one good reason that the police, and you yourself, commonly use a six-pack is to avoid the witness feeling pressure from police to identify their suspect?”
“I guess so.”
“So an eyewitness who identifies a suspect from a six-pack would be more reliable than one who was only shown one picture and asked to verify its identification?”
This time Rosen stood. “Objection. Speculation. Calls for conclusion.”
Hardy didn’t wait for a ruling. “Let me ask it this way, Inspector. You’ve had lots of training, including preparation for the examination to become an inspector, that taught you that this is precisely the function of the six-pack, to avoid mistaken identification, right?”
Cuneo hesitated. Hardy pressed on. “That’s a yes or no, Inspector. Haven’t you had literally hours of classes about the identification of suspects, where you learned that the six-pack is one way to avoid mistaken identification?”
Cuneo ducked. “I’ve had hours of training on IDs, yeah. I don’t recall how many involved six-packs specifically.”
Hardy felt the lame answer made his point better than either yes or no, and sailed on. “Inspector Cuneo, at any time in your investigation of Catherine Hanover, did you use a six-pack to assist eyewitnesses in their identifications?”
Cuneo didn’t answer. Braun looked down at him. “Inspector?”
“Should I repeat the question?” Hardy asked, all innocence.
This earned him a glare from the judge, who repeated, “Inspector?”
“No, I did not.”
Cuneo just couldn’t let it go, so he made it worse. “We use this to confirm an ID when the witness doesn’t know the person. When you know somebody, we might use a single photo just to be sure that we’re talking about the same person. I mean, if you say you saw your cousin, we might show you a photo of your cousin just to be sure we got the right guy.” Shoulders twitching, Cuneo tried an evasion. “It’s pretty obvious.”
“I’m sorry, Inspector. What’s obvious? That witnesses can make mistakes, or that you shouldn’t coach them to make an identification?”
Rosen was up in a second, objection sustained. Hardy didn’t even slow down.
“When there is a question, Inspector, you use a six-pack to be sure there is no mistake. Correct?”
“Yes.”
“And you never, ever tell a witness ahead of time who you think should be ID’d, or even give vague hints of what they look like, correct?”
“Yes.”
Just a hint of sarcasm entered Hardy’s voice—too little to object to, but just enough for the jury to discern. “And you, as a professional, intent on making sure that the wrong person doesn’t get accused, you would always do what you could to make sure an ID was correct, wouldn’t you?”
Cuneo got a bit heated now. “Yes, I would.”
“So your failure to use a six-pack was not designed to bolster your preconception of who was coming out of Mr. Hanover’s house, was it?”
“No! It was not.”
“But the first time you showed a photo, you thought the person coming out was Missy D’Amiens, right? So you showed the witnesses a single photo and got your ID, right? And then, when you decided it must have been Catherine coming out of the house, you went to the same witnesses and used another single photo, and again got the ID you wanted, right?”
“It wasn’t a question of what I wanted; it was what the witnesses said.”
Cuneo’s eyes went to Rosen for an instant, but the prosecutor could do nothing to help him. Just this side of surly, he turned to face the jury box. “No, I didn’t use a six-pack for these IDs. These witnesses all said they had seen this woman before.”
“Which woman was that, Inspector? Missy D’Amiens? You remember her? The first woman they ID’d for you? Or Catherine, the second woman whose single photo got you an ID, too? In both cases, you told the witnesses who you thought they had seen, then showed them a single photo, and surprise! You got the ID you wanted, right?” Hardy, on a roll of adrenaline and anger, kept piling it on. “You said that you use a six-pack when the ID is in question, didn’t you, Inspector? Can you think of anything that might put an ID in question more than a previous ID of someone else’s photo?”
Another shrug, another glance at Rosen—Do something! Rosen tried to help. “Your Honor, objection. Vague.”
“Not vague, but compound and argumentative. Do it a piece at a time, Mr. Hardy, and perhaps a bit less . . .”
“Sure, Your Honor.” Then, with a slow and thoughtful cadence, he began again. “Inspector, you showed a single photo of Missy D’Amiens and got IDs, right?”
Cuneo couldn’t disagree. “Correct.”
“And after that, Catherine accused you of harassment, right?”
“I don’t know what she said.”
“Inspector, after you got the ID on Missy, and before you got the ID on my client, Deputy Chief Glitsky told you Catherine had complained of harassment, right?”
“Yes, that’s what he told me.”
“And with this information in mind, you took a single photo of Catherine, went back to those same witnesses, and said words to the effect of ‘You made a mistake last time. Here’s the woman you really saw.’ Correct?”
The Motive Page 34
