“I don’t think I see him. But I can’t see everyone in the courtroom.”
Nick stiffened. A concerned frown appeared on his face, and there was a long pause before he responded.
“Take your time, Mr. Johnson. Look carefully.”
Johnson once again scanned the gallery and briefly looked at the defense table. “No, sir, I don’t believe he’s here.”
Nick realized that further questioning of this witness would only strengthen and highlight the failure in the identification. He could try to remind Johnson of his previous out-of-court identification, but that would only bring a vigorous objection from Gordon. Nick searched his brain for some hearsay exception to get this previous identification by this witness into evidence. Surely there must be one, but nothing came to mind.
As an experienced prosecutor, Nick knew there were times when it is best to just “cut your losses,” and he did that immediately. “No further questions, Your Honor.” He would simply rely on Vijay Patel for the critical identification; his potent testimony and strong eyewitness identification had carried the verdict at the first trial.
Gordon rose from his seat and began to walk toward the center of the courtroom. “I have just a few questions for this witness, Your Honor.” He stopped center stage and turned his head toward the jury until he had the attention of each member. Then he turned to the defendant.
“Mr. Harrison, I want you stand and face the witness, Mr. Johnson.”
The defendant got up slowly and did as his counsel commanded.
“Mr. Johnson, the man you saw with the pistol, did you have a profile view of him as you were looking through that window?”
“Yes, sir, I did.”
“A left profile or right profile?”
“It was his left.”
Gordon then turned to his client. “Mr. Harrison, turn so Mr. Johnson can see your left profile.” The defendant turned as directed.
Gordon now paused, looked at the witness, and said very slowly, “Is this the man you saw that night with the pistol?”
“No, sir,” answered Johnson. “It is not.”
“I have no further questions.”
Scott was so stunned by the testimony he could not come up with an appropriate expletive to mutter even silently. He glowered at Johnson as he stepped from the witness box. Nick had tried to maintain a look of placidity throughout the cross-exam. It was a reflexive response he had developed over the years whenever he found himself on the receiving end of devastating testimony. Outwardly he may have maintained a stoic look, but inwardly his gut was reeling. When Judge Desano directed Nick to call his next witness, Scott left the prosecution table, following about thirty feet behind Johnson. As soon as they were in the corridor, Scott ran to catch up, grabbed his arm, and pulled him aside.
“Josh, what in hell’s name was going on with you in there? You assured me when you were here last year that he was the one. ‘No doubt,’ you said. It was the profile view that made you so sure. In there today—the same damn courtroom—you had the same damn view, and you come up with ‘no that’s not the man’! You owe us an explanation, Josh.”
“Being on a witness stand in a courtroom is different, Scott. When I told you that was the man, I wasn’t in a packed courtroom in front of a jury. I was scared, really scared. My hands were trembling and my stomach turning. And I remember that at the last trial, I was told—in fact, you told me—that the defense had packed the courtroom with ‘look-a-likes.’ I thought that might be the case today. OK, so it looked like him, but how was I to know?” Josh forcefully folded his arms across his chest.
“Well, why didn’t you say ‘it looks like him’? That was the truthful testimony, wasn’t it? At least it wouldn’t have scuttled our case. ‘It looks like him, but I can’t be sure’—that would have taken care of the look-a-like problem.”
“Let me ask you, Scott: why are you so wound up about getting a conviction in this case? It’s just one simple robbery. There are robberies in Savannah every night. Most thieves aren’t even caught, and those who are don’t get the attention you guys are giving this one.”
“This isn’t about one robbery, Josh. This guy is a one man crime wave. He’s committed multiple robberies—at least seventeen—and gotten away with them.”
“Seventeen?”
“At least. Went to trial three times—once in Florida and twice in south Georgia counties and was acquitted every time. Don’t ask me why, I wasn’t there, but maybe the prosecutors thought like you—just one simple robbery. Well, this is our final chance, and we are close to blowing this one, too. And not because his old man has more money than Fort Knox and can hire the best lawyers in the country, but because an eyewitness gets scared and crumples on the witness stand. I’m surprised a wuss like you didn’t haul ass when you saw the robbery going down.”
“Go fuck yourself, Scott,” Josh said, as he turned and walked rapidly toward the elevators.
*****
Back in Courtroom K, Nick had called one of the first responders to the 911 call. He, like the two forensic witnesses who followed, had nothing of value for the prosecution, except to show that there had been a serious investigation. After his confrontation with Josh, Scott had slipped back into the courtroom and taken his seat at the prosecution table. He was still steamed up, and having no special role in the case, he had now mostly tuned out the proceedings. Eventually he began writing on a legal pad, making a “to do” list for a pending trial, and only occasionally looking up to observe the witness.
It had been a long day for the jury, though they had remained attentive despite nonexistent evidence. After the third witness, Judge Desano recessed the court until nine Tuesday morning.
Nick stood and picked up his briefcase. He neither spoke to nor looked at Scott, but Scott could see his tightened lips and fiercely rumpled brow. Nick merged with the large crowd funneling through the courtroom’s only public exit. Scott followed a short distance behind, watching Nick as he brushed and bumped through the mob and toward the stairway. The elevators would be crowded; Nick was seeking the quickest way out.
Scott was in no hurry. He would wait awhile before going to Nick’s office to discuss the trial. His phone was ringing as he opened the door to his own office. He expected it to be from Nick and was surprised to hear Jennifer’s voice. She rarely called him at work.
“I don’t want to bother you—but I’m really curious. I was watching on TV. What happened with that witness, Johnson?”
“Stage fright. Totally scared. I spoke with him after he testified. Said he recalled the ‘look-a-likes’ at the first trial and thought it might be a setup. Afraid he would misidentify the defendant and ruin our case.”
“Looked like he did a pretty good job of that.”
“Maybe. We got a conviction last time with just Patel—and we still have Patel. I think we can do it again, but Johnson really hurt.”
“What did Nick have to say?”
“He left the courtroom without speaking. I could tell he was angry—probably as much at me as at Johnson, because I’m the one who told him that Johnson would identify the defendant. I’m going to wait until he cools down.”
“Well, good luck with that and good luck tomorrow. I’ve got my seminar tonight, so I’d better go—got a bit of reading to do. Bye now.”
Just as soon as Jennifer hung up, the phone rang again. This time it was Nick.
“Do you have a copy of the first trial’s transcript?”
“I do.”
“Bring it down. I want it now.”
Scott was surprised at the request; he was sure Nick had his own copy.
Scott’s copy was in his briefcase, which he carried with him to Nick’s office. When he arrived, Nick was scrunched down in his high-back chair, slowly twisting a pencil between his right thumb and forefinger and gazing toward a high window. He did not appear to see Scott enter. Scott had seen this position and the pencil twisting before. He did not speak as he sat in a chair near Nick�
��s desk.
In a few moments, Nick snapped out of his trance, sat up, and turned to Scott. “What the hell happened with Johnson? You said he would identify Harrison. Did he suddenly become brain dead?”
“I spoke with him in the hallway after his testimony. He said he was frightened. He remembered the ‘look-a-likes’ from the first trial and was afraid he was being set up. He didn’t want to misidentify the defendant, so he balked. Didn’t want to sabotage our case by making a mistake, so he thought it best not to make the identification.”
“Well, he knew we didn’t fly him from Denver to Savannah so he could sip crab stew with Paula Deen. He really stiffed our case.”
“We still have our best witness, Patel. We won with him last time.”
“But that case didn’t include testimony from that little prick from Colorado. Did you bring the trial transcript? I want to hear Patel’s testimony.”
Scott reached into his briefcase, removed the transcript, and placed it on the desk in front of Nick.
“I said I want to hear Patel’s testimony, not read it.”
“You want me to read it to you?”
“Right. I’m going to sit here and listen like a juror. I want to hear Patel describe what he saw, and I want to hear his identification. I want to hear him say why he’s so damn sure. I want to be able to believe him—I’ve got to believe him. This case depends on me believing him, and when the jury sees me believing him, they will believe him. That’s the way it works in a criminal trial, Scott. The jury has to see that you believe your witness. They can feel it in your voice, see it in your eyes. They know. If I believe him, we can win this case. If I have doubts tomorrow, it’s all over. Right now, thanks to a friggin’ fishing guide from Colorado, I have doubts, and surely the jury has doubts. So read it. Let me hear Patel—convince me.”
Nick’s demand annoyed Scott. He could think of a number of better ways to spend his time than reading a transcript to another attorney fully capable of reading it himself. But he also felt somewhat responsible for the debacle that afternoon, so maybe he owed it to Nick to go along with his unusual request. And though at first he thought Nick was being a bit dramatic, perhaps Nick was right—he must really believe in his witness if he’s to have any chance of convincing the jury.
Scott leafed through the transcript to find Patel’s testimony. He looked up to see Nick facing him with a solemn expression and sitting up like an attentive juror at the beginning of a trial. “The witness is Patel,” Scott said, “and I’m conducting the examination. I won’t read who speaks each line. It will be apparent.”
Scott began:
Please turn to the jury and state your name and address.
Vijay Patel. I live at 4345 East Pulaski Drive, here in Savannah.
Nick interrupted. “Skip the intro stuff. Move on to what he saw.”
Scott ran his eyes down the transcript and began again.
I had taken out my keys to lock up when a man entered the store. I waited behind the counter to accommodate him.
Describe how the man was dressed.
He was wearing dark sunglasses, Levis, a dark blue pull-over shirt, and a tan wind-breaker.
What did the man do?
First, he went to the beer cooler, opened it, looked in, and then shut it without removing anything. He turned and faced in my direction for a moment, and then turned his head from side to side, like he was scanning the store. I couldn’t see his eyes because of his sunglasses, but he must have seen me looking at him. He then turned back toward the beer cooler.
Nick interrupted. “No, not that. Skip to the cross-exam. I need to hear Patel’s answer to why he’s so certain of his ID. I want to hear that ‘why’ question by the defense counsel. That was one of the dumbest questions ever asked in a Chatham County courtroom. He gave you a gift at that trial, Scott.” Nick leaned back in his chair and closed his eyes.
“Well, let me find it.” Scott found the now famous “why” question asked by Professor Nolan at the last trial. Scott was sure it played a role in the appellate decision that found Nolan, who replaced Gordon as defense counsel early in the first trial, to be incompetent. Sometimes an accused is better served by a complete buffoon, as Nolan proved to be—his incompetence won Harrison a retrial. And as often is the case, the prosecution was finding the retrial in the same Savannah courtroom much more difficult than the original.
“OK, Nick. The questions that follow are being asked by the defense counsel, Nolan. The objections are by me.”
Your testimony is that 25 months ago someone wearing dark sunglasses walked into your store, pointed a pistol in your face, and robbed you, and you haven’t seen him again until today, but you can still identify him?
Objection, your honor. Compound and argumentative.
Sustained.
Would it surprise you, Mr. Patel, that I don’t believe it possible for anyone to make such an identification after so many months? And do you expect the jury to believe your story?
Objection, Your Honor. I object to counsel stating a personal opinion. It’s also a compound question and argumentative.
Sustained. It is all that and more. The jury is instructed to disregard the last question—the last questions—by defense counsel.
Why can you be so sure that this is the man who robbed you?
A smile came over Nick’s face when Scott read this question. It was indeed one of the most foolish questions asked of a witness in a Chatham County courtroom.
“Read it slowly,” said Nick. “I want to drink in every word.”
“My pleasure,” said Scott. Nick was no longer sitting upright in his chair, but reclining with his eyes closed and a somber look on his face.
Let me state why I am so sure. I looked at this man holding the gun in my face, and I saw a person who appeared to have everything going for him—physically handsome, well-spoken, obviously well-educated—such a fortunate person. He looked like the son I never had but always wanted. Why would he be doing this? I was afraid, yes; he had a gun pointed at me. But I also hoped that someday I would have the opportunity to identify him in court, like this court, this day. I was determined to remember every feature about him.
Scott looked up from the transcript. Nick’s eyes were still closed, but now there was a pronounced smile on his face.
As he stood there before me, he was just a few feet away. Just as close as you are now. And the lighting was very good. It was a short time, yes, but I made a careful study. I studied his height and his body size and shape. I studied the texture and color of his hair, the shape and size of his nose, his lips, his chin, his ears, the size and length of his neck, the complexion of his skin. The only thing I missed was his eyes, because of his dark glasses. I have a good mind for recognizing and remembering people, and I stored every feature of this man in my mind so that when the time came, I could recall it. I have seen that image in my mind every day since I saw him that night. It has remained unchanged. There is no question in my mind—there is the man who robbed me.
When Scott was finished, Nick sat up quickly and faced Scott. “We can win this case. Patel will come through—he’ll convince the jury. I now have no doubt, and the jury will have no doubt. Despite that piece of sewage that flew in from Colorado, we can win, Scott. At five o’clock today, I wouldn’t have given us a chance. But we will win.”
Scott did not share this extreme optimism, but it was catching. If Nick was this enthusiastic after hearing the testimony, who was he to disagree? After Johnson’s devastating testimony, Scott had been certain their case was unsalvageable. It was hard to feel that way after listening to Nick’s passionate rant.
Nick leaned forward and with a tightened fist, pounded the top of his desk lightly. “Here’s what we will do, Scott. No more forensics or deputies. We’ll go straight to the jury with Patel. First witness and final witness tomorrow. I don’t want the jury sitting there with Johnson’s testimony still lingering. The longer we hold off with Patel, the weaker our case g
ets. Make sure he’s here and ready to go at nine. And now I’m going to break one of my own rules—about briefing and preparing every witness. I don’t want him rehearsed. Don’t want it to sound canned. I want him fresh. It must come from him, not me as prosecutor. Absolute and unwavering testimony from his lips, not mine. It will reenergize our case. Gordon will be expecting us to use up the morning with witnesses he knows—and we know—have nothing to contribute. But they’ll find Patel on the stand, and they won’t be able to shake him.”
Scott had arranged for several additional witnesses for the morning session. Two deputies and a forensic expert were to testify, detailing an extensive investigation—but no relevant evidence pointing to the defendant. And a neighbor who had observed “a figure” run from the back of the store about midnight and speed away in a car that he could not identify—at least arguably relevant to show that the robber was not from the neighborhood. Nothing else to present to the jury, except Patel’s eyewitness identification, and though Scott still felt there was value in numbers, he knew that Nick was right. Their only hope was Patel.
“He will be here. Fresh.”
CHAPTER ELEVEN
September 18, 2007
It was just a little after 9:00 a.m. Tuesday, when Nick stood and said, “The state calls Mr. Vijay Patel.” The courtroom, overflowing with spectators and the news media, suddenly became quiet. The jury was motionless as Patel walked slowly toward the witness box, was sworn, and took his seat.
Nick placed some notes on the lectern, stepped a few feet to the side, and introduced his star witness. Name, address, occupation, was not enough. He needed to personalize him, make him acceptable, believable. So he began to break it down. Born and raised in Los Angeles. Served in the United States Coast Guard, stationed in Savannah. He met his wife here and stayed after an honorable discharge. Owns his own business, the same place for 20 years. Three children ….
Both Scott and Nick knew that objections would come quickly with such questions. The defense was not going to allow the prosecutor to load a complete resume of favorable, but mostly irrelevant, information upon the jury. However, the objections did not come, and Nick was able to reveal that Patel’s oldest daughter is now a freshman on a scholarship at Armstrong Atlantic, with the other two in local public school. Gordon just sat and stared at the witness.
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