Invasion of Privacy
Page 34
"Well, then, let’s just test your short-term memory, shall we?" Nina said. Officer Joyce’s smile faded fast. "Here’s the test: What is the question I asked you three questions ago?" Nina said.
"Objection. Not a proper test, Your Honor."
Up to the sidebar they went. In the witness box, Officer Joyce’s face was screwed up in concentration, using the extra minutes Collier had gotten for him. "So what’s the problem with it?" Milne asked Collier. Collier repeated that it was unfair and made his argument, while Joyce thought. Milne noticed Collier looking at the witness, and, observing his expression, said brusquely, "Overruled."
Back at the counsel table, Nina said, "Your response, Officer?"
"I don’t know what you mean. Three questions ago, what does that mean?"
"I’ll even start out the question for you. ’And during this time ...’ "
"And during this time ... you were involved with discovering the body and all that ..." Officer Joyce said tentatively.
"That’s what you remember?"
"It’s hard to remember exactly. I mean, it’s very stressful, being here in court."
"And it’s not stressful pulling a man over who’s got blood all over his clothes and finding a shooting victim?"
Officer Joyce had no answer for that one.
"Request that the question beginning ’And during this time...’ be read back, Your Honor."
The court stenographer took a moment, then read: " ’And during this time you were involved in the grisly discovery of a body covered with blood, with all that entailed.’ "
"Right," Officer Joyce said. "I had most of it."
"I submit that you weren’t even close to the exact words, Officer. How much time elapsed between my asking that question and your attempt to repeat it?"
"Three or four minutes," the young patrolman said, slouching in his seat.
"That’s all. Thank you," Nina said. She looked over at the jury. They were sitting up as straight as Officer Joyce had, starting out. Good. Wake ’em up. Down with predictable endings.
"State your full name," Collier said from his counsel table. It was Thursday morning, and the case against Kurt was in full swing. It would be a hot day, and the air-conditioning had quit.
"Willie Gershwin Evans. Call me Willie, please."
The lip-reader who had made the transcript of the death video had taken the stand. In his seventies, an upright, healthy-looking man who obviously took his vitamins, he wore rimless glasses and a starched white shirt and striped tie.
"Where are you employed?"
"I’m retired now, but until then, I was a benefits worker for the health department out of Placerville." He spoke clearly, though his voice had a hollow tone, as though produced from an unusual place.
"Have you served as a lip-reading expert on behalf of the county on any other occasions?"
"Oh, many times, over forty years. I helped hearing-impaired people fill out applications for benefits. In court, I spoke for witnesses who use American Sign Language. I’m good at that, and lip-reading helps with sign language. I helped the police, too, when they were watching people through windows and needed to know what they were saying."
"Are you yourself hearing-impaired?"
"I used to be. Back in the days when they called people like me just plain ’deaf.’ Diphtheria when I was a child. I couldn’t hear again until I was thirty-eight. And then my wife got me tested at Stanford, and lo and behold, they thought they could operate and fix my hearing. They got me up to seventy-eight percent. My hearing aid fixed the rest. But they couldn’t help my wife, so I stayed up on American Sign Language and the lip-reading."
"And do you consider yourself an expert in the area of reading lips?"
"I do it better than anyone I’ve met," the old man said confidently.
Collier said, "Request that this witness be qualified as an expert in the area of lip-reading."
"Ms. Reilly?"
Nina thought. She could make a big deal out of Evans’s competence, or she could try to turn his testimony to her own ends. She decided not to quibble. "No objection, Your Honor," she said.
Collier said, "I’d like you to demonstrate for us how you read lips. I’m going to write down a sentence and read it without sound to you, and you tell me what I’ve said, if you will. I will represent to the court and counsel that I have not rehearsed any of this with the witness. That’s true, isn’t it?"
"All you said was, you might give me a little test," the witness said, nodding. Collier thought a moment, wrote something down, and handed the paper to Milne. Then he stepped up close to the witness and said, "Ready?"
"Go ahead."
Collier mouthed some words at the witness.
"Do it again," the witness said.
As soon as Collier’s mouth closed, the witness said, "Got it now. You said, ’The price of eggs has gone up to forty-nine cents a dozen.’ When’s the last time you shopped for eggs, sir?"
The spectators laughed, and Collier smiled and retrieved his paper from the judge. He gave it to Nina to read at her seat, then said, "May I show the jury?"
"No objection," Nina said. The paper went around. The witness had it word for word. Collier walked over to the clerk and picked up some exhibits.
"Now, on March thirty-first of this year were you asked to perform lip-reading services for the South Lake Tahoe Police Department in connection with an ongoing investigation into the death of Theresa London?"
"I was."
"Describe the services you were asked to perform."
"They had a videotape of the, uh, deceased lady. She’d been shot, and couldn’t speak, but she was moving her mouth like she was talking. So they wanted me to see if she was saying anything."
"And did you review the tape, which has been previously admitted as People’s Exhibit 45?" The witness looked at the tape offered by Collier and said, "Sure did. When I was done, I put my name on it, right here on the label. And the date."
"Where were you at the time you viewed the tape?"
"In the conference room at your office. An officer ran the tape and when we were done he rewound it and put it back in the box."
"Were you at any time left alone with it?"
"Nope."
"What happened then?"
"I wrote down what she said, leaving blanks where I wasn’t sure. Your secretary typed it up and I made sure the typed statement was exactly the same as mine. Then I signed it."
"And is this document, marked as People’s Exhibit 46, the original handwritten notes you made?"
The witness bent his head down, examined the paper closely. "That’s it."
"And is this typewritten document, marked as People’s Exhibit 47, the document the secretary typed up, which you signed?"
He made the same close examination. "That’s right."
"Request that People’s 46 and 47 be admitted into evidence," Collier said.
"No objection," Nina said.
"The exhibits are admitted into evidence as numbered," Milne said, writing his own notes.
Collier said, "Now tell me, Mr. Evans—"
"Willie."
"Please read those notes to the jury."
"Objection. Best evidence rule," Nina said.
"Come on up," Milne said.
When she, Collier, and Milne had their heads together, Nina whispered, so the jury couldn’t hear, "The witness’s recollection is the best evidence, even if he uses the notes to refresh his recollection, so he should be testifying from memory to the extent he can do so."
Milne said to Collier, "She’s right, but she’s wrong. The best evidence is the videotape. The witness is the interpreter. Why aren’t you starting with that?"
"I thought we needed more of a foundation. Show the chain of custody is intact. Unless, of course, counsel is willing to stipulate—"
"That you haven’t tampered with the tape? So long as it’s the same tape I saw that day in your office, I’m not going to object," Nina said. "Let’
s show it. I’ll reserve any objection."
"It will save a lot of time. Thanks," Collier said, casting her a puzzled look. She knew he was wondering why she didn’t use every technical tool to keep it out.
They went back to the counsel tables, and Collier had a whispered conference with a deputy. In a few moments a screen had been set up and the deputy had set up a projector in the aisle.
"The objection is sustained," Milne announced.
"At this time, the People would like to show the witness Exhibit 45, a videotape apparently made by Terry London after she was shot."
"No objection."
"Just a moment," Milne said as the lights dimmed. "Ladies and gentlemen of the jury, I am going to advise you that this tape is quite graphic and shows the physical effects on a human being of being shot. You are going to see quite a bit of blood. If at any time you feel unable to continue, please raise your hand and you will be escorted from the courtroom."
The jurors lifted a collective eyebrow. Mrs. Bourgogne took a deep breath and folded her hands in her lap, and several of the others followed suit.
"Proceed."
Collier motioned with his hand. Suddenly they were all in Terry’s lurid studio, with all the shocking sounds pouring out of the speaker. The stricken courtroom watched and listened to her gagging on her own blood, mouthing words with hideous resolve.
The tape ended. The jurors appeared to be in shock. Kurt said in a low voice, "God, it’s horrible, horrible!" He seemed to be in the grip of a great upheaval, as if he would jump up in a moment and say something he’d regret. Nina laid a restraining hand on his.
The video had yanked Nina from the game of trial strategy back into the reality of a human being whose life had ended in front of her. And yet—and yet— Terry London had died hating. She had to remember that.
"Is that the tape you saw?" Collier was saying to Evans, in a matter-of-fact voice.
"The same."
"And you watched it several times?"
"I did."
"Your notes, Exhibit 46, are a result of lip-reading the words of the victim?"
"Yes."
"Can you remember her exact words without reading your notes?"
"No."
"All right. Read your notes," Collier said.
Evans hesitated, looked over at Nina as if she intended to stop him.
"Go ahead, Willie," Collier said again.
"All right. This is according to my notes, which I took while I was watching the video over and over. She said, uh, ’It doesn’t hurt pause I’m dying pause It’s your fault Kurt pause oh oh I’m dying pause You blanky blanky pulled the trigger pause what a surprise pause The Angel of Death pause I’ll see you in hell.’ Then she trails off, saying ’oh oh oh.’ "
The courtroom had fallen silent. The words, read in the elderly man’s hollow voice, were so powerful, so chilling. One of the young woman jurors pressed her hand over her mouth.
Collier let the silence die away. Then he said, "When you say ’pause,’ what does that mean?"
"Oh, she didn’t say that. It’s just to make it clear that she paused between those words."
"And when you say ’blank’?"
" ’Blank’ means there’s a syllable I couldn’t catch. ’Blanky’ is two syllables."
"So, to make it a little easier, without the pauses and blanks, she said, ’It doesn’t hurt. I’m dying. It’s your fault, Kurt. Oh, oh. I’m dying. You pulled the trigger. What a surprise—the Angel of Death. Oh, oh, oh."
"Yes. Those are the words I saw."
"Thank you. Your witness."
"Good morning," Nina said.
"Good morning," Willie Evans said, flashing a sparkling pair of dentures.
"Your hearing is normal with the hearing aid?"
"Yes."
"How’s your eyesight?"
"My eyesight? About what you’d expect. Fine, so long as I wear my specs."
"That conference room you were sitting in—about how far were you from the TV monitor?"
"Oh, about as far away as you are from me."
"Good," Nina said. "Because I’d like to give you a little test like Mr. Hallowell did, only from the distance that you observed the TV monitor."
"Okay," Willie said. "Let me wipe my glasses." While he wiped them, Nina wrote something down on a card and passed it to Collier, then to the judge.
She mouthed some words, and Willie strained toward her.
"Again," he said. She did it again, and he said, "It’d be better if you came up close."
"Oh, but that would ruin my test," Nina said. "Tell the jury what I just said.’’
"Well, I missed a couple of words. You slurred them. "
"Did the woman on the tape slur words too, Willie?"
"Sure. In her condition, I would too. That’s why I had the blanky blanks."
"Okay, use blanky blanks if you need to," Nina said. "Want to see me say it one more time?"
"Sure."
She mouthed the words once more.
"The best I could tell," Willie said slowly, "you said, ’You might’s well of pulled the trigger.’ Say it again."
Nina sat there, made words with her lips.
" ’You might’s well of pulled the trigger,’ " Willie Evans said hesitantly. "That’s what I see."
Nina said, "Thank you," then got up and took the paper to the jury. As they passed it around, she said, looking at Mrs. Bourgogne, "Let the record show that I wrote on the paper, ’You might as well have pulled the trigger.’ "
"Like I said, you slurred it a little bit."
"And could the lady in the video have said ’might as well have’ where you wrote ’blanky blanky’ in your notes?" Nina said.
Evans picked his notes up again, adjusting his glasses as if they could help him divine what the blanks said. "I can’t tell right now," he said.
"As you sit here right now, is it possible that the lady said that sentence in the video? ’You might as well have pulled the trigger’?"
"Objection! Calls for speculation!" Collier said quickly.
"Withdrawn," Nina said. "I’ll tell you what, Willie. I need you to look at that bit of the tape one more time. Can you do that?"
"If you insist," Evans said.
The tape rolled again. This time Nina motioned for the deputy to stop it in the middle. Terry’s agonized face filled the screen. Evans craned his neck to see better.
"What did she say right there?" Nina asked.
"She said, ’You blanky blanky pulled the trigger.’ "
"Can you fill in the blanks, based on this viewing?"
" ’You might’s well’ve pulled the trigger,’ " Evans said. "Yes, it would fit right."
"I’m not asking you if it would fit, Willie. I’m asking you, is that what she said?"
"I don’t know. It’s an art, you see."
"Is that what she said?"
"Objection! Asked and answered! Calls for speculation."
"Overruled," Milne said unexpectedly.
"That could be what she said, all right. It could be. But you want to know for sure, is that it? I can’t tell you. I sure can’t. She said some words in between ’you’ and ’pulled.’ Four syllables. She was coughing. I can’t tell you."
"But it could have been, couldn’t it, Willie? ’You might as well have pulled the trigger’?"
"Objection! Argumentative! Request a sidebar conference! Your Honor ..."
Willie was nodding his head, saying, "It could be. Yep, it could."
"The answer will stand. Move on, counsel."
"All right," Nina said. "Was any portion of the video blown up or refined for you using computerized techniques, Willie?"
"No. But I watched the video at least ten times. I don’t think I would have—"
"Thank you. Did you see any still pictures from the video?"
"No. It wouldn’t have helped."
Nina went on to the other words in the video, especially the "Kurt." But Evans wouldn’t budge on that one,
and stood up to her very well for the remainder of the morning. The lunch recess was coming up. Nina thought she had gotten everything she could, but she felt reluctant to let Evans go. She felt that Willie had another treasure for her, if she could just dive deep enough for it.
Finally, she said, "That sentence, ’I’ll see you in hell.’ The H is an aspirant that you can hear but not see, isn’t that right?"
"Right. But I got it easily from the context."
"What you actually saw was ’I’ll see you in L,’ isn’t that right?"
"Sure, but there is no L. Some say there’s no hell, either, of course." Some of the jurors smiled.
"How do you know there’s no L?" Nina said. "It could be an initial for a certain place, couldn’t it?"
"No. I don’t think so," Evans said. "She said ’hell.’ It was in her eyes, her expression, the context. She said ’hell.’ "
She wasn’t getting anywhere. And Mrs. Bourgogne yawned, a discreet little yawn, but a yawn. She gave up. "Thank you," she said. Sandy elbowed her.
"Just a moment, Your Honor," she said.
Sandy whispered, "Put him on the film the cop took when he pulled Kurt over."
Nina thought, said under her breath, "Wow!"
"Are you finished, counsel?"
"Just a few more questions, Your Honor. Willie, you say lip-reading is an art—"
"And I’m an artist," Willie said, grinning. "I see a lot of speech you wouldn’t believe. You want to know what the lady sitting next to you said just now?"
"No! But I guess you know what I want you to read for us now."
"That I do."
"With the court’s permission, I’d like to have Mr. Evans read the defendant’s lips on the tape made by Officer Joyce at the time the defendant was stopped on Pioneer Trail. People’s Exhibit 14."
"That’s completely improper, your Honor," Collier said. "It’s beyond the scope of direct examination. It’s cumulative. The witness has already demonstrated his competence. She’s using our expert as a defense expert."
Milne had followed the last interchange with the witness keenly. Now he said, "Your objections are technically correct, counsel. However, the request to show the witness that portion of the tape in which the defendant’s lips are moving is granted in the interests of justice, in the Court’s discretion."