by Adam Mitzner
“Sustained. Mr. Sorensen. Please.”
Kaplan had done us a favor. Had Boyle been allowed to answer, he would have undoubtedly given a long explanation as to how they checked for every conceivable weapon. Now the jury assumed the premise in my question was correct.
I walked from the podium until I was standing directly behind L.D., and placed my hands on his shoulders. “Detective,” I continued, “you just told this jury, under an oath to tell the absolute truth, that it took you some time to believe that the evidence pointed to L.D. as the murderer. You swore to these jurors that you were thoughtful in your investigation. That you did not rush to judgment solely because the easiest thing to do in a high-profile case is to arrest the boyfriend. That was your testimony, wasn’t it, Detective?”
“Objection!”
Whereas just before she shouldn’t have objected at all, this time she objected too late, allowing me to get through my speech. Judge Pielmeier said, “Your job is to ask questions, Mr. Sorensen. We all know what was said.”
The gallery laughed, but I noticed that Kaplan didn’t. Although it was most likely inadvertent, Judge Pielmeier’s quip supported my claim that Boyle had actually testified as I’d recounted.
“Detective, what did you learn in days two, three, and four of the investigation that led you to believe that L.D. was guilty of this crime that you didn’t know on day one?”
“Look, Counselor, I’m not sure when exactly we came to the conclusion that your client was guilty, but we ultimately reached that decision.”
“I know you reached that conclusion,” I said. “That’s why L.D. is sitting here. But it doesn’t mean you were right.” Before he could say anything, I added, “Let me ask the question this way: Did you still have doubts that L.D. was guilty even after you knew he was Roxanne’s boyfriend? After you saw the baseball bat in Roxanne’s bedroom was missing? Doubts that caused you to wait another four days before arresting him?”
“Objection! That’s three questions, at least, Your Honor.”
Judge Pielmeier seemed to think about it for a moment, but then she said, “Sustained. One at a time, Mr. Sorensen.”
Kaplan couldn’t win for losing. If she’d let Boyle fend for himself, I had little doubt that he would have said he had no doubt about L.D.’s guilt from the get-go, but he just wanted to make sure his case was airtight.
“Let’s talk about those three pubic hairs, Detective Boyle.”
“Okay, let’s,” he said, regaining some of his swagger from earlier.
“You cannot say definitively that they came from Roxanne, can you, Detective?”
“As you know, Counselor, the hairs were without the root. The experts told me that without the root, they couldn’t make any definitive determination.”
“That’s not exactly true, is it, Detective?”
“Excuse me?”
“You just swore, under oath, that without the root, you can’t make any determinations, and I’m saying that’s not true. For example, you know that the hairs came from a Caucasian, don’t you?”
Boyle looked annoyed, but for once, at least, it was probably more at himself than at me because this one he just missed. “I’m not an expert in pubic hair analysis, Counselor. I’m only telling you what the investigators told me. I think you’d call it hearsay. But what they told me was that the only things they could tell for sure about the hairs are that they are from the pubic region and from a Caucasian.”
“And by deduction, you concluded that they did not belong to L.D. because he’s African-American, correct?”
“Yes.”
“And is it also your sworn testimony that you concluded that the pubic hairs you found in Roxanne’s bed belonged to her, and not to someone else?”
“As I previously testified, Counselor, that was the most logical assumption based on the evidence. You see a hair in the bed, and you assume it belongs to the person who slept in that bed every night.”
I had the next question on the tip of my tongue—Did Roxanne have any pubic hair at the time of her death?—but I held it back. That was our one bullet in the chamber. The one surprise we held, and I needed to fire it at their expert.
I leaned my head between L.D. and Nina. “I think I’m going to stop it there,” I whispered. “What do you think?”
“I agree,” Nina said.
“L.D.?”
“Yeah, man, that was great.”
“No further questions, Your Honor,” I said.
• • •
As soon as we stepped inside the apartment, Nina and I were at each other like teenagers. For me, the time after was as wonderful as the act itself. Nina laid her head on my chest, and neither of us said anything, the silence filled only with the sound of heavy breathing. My mind replayed each moment, a kind of highlight reel. More than anything else, I reflected on the fact that this must be what the phrase utter contentment meant.
42
I expected Kaplan to lead off the next day with the coroner, Harry Davis. Instead, she announced that the people’s next witness was Andrea Wells.
There was a gasp from the gallery when her name was called. And then everyone’s eyes followed Wells from the back of the courtroom to the witness chair, as if she was some exotic animal that no one had ever seen before.
L.D. leaned over and whispered in my ear. “What’s she going to say? I never met the woman.”
My best guess was that the prosecution was going to use Roxanne’s mother to establish motive. Somebody had to explain to the jury that Roxanne ended things with L.D., which led to L.D.’s enraged attack. Who better than the victim’s mother?
I decided not to share any of that with L.D. “No idea,” I whispered back.
Dressed in an expensive-looking cream-colored suit, with enough jewelry to remind the jury of Roxanne’s success without being over-the-top about it, Andrea Wells looked much better on the witness stand than she had when we dropped in on her in South Carolina unannounced. Her blond hair was loose and her makeup made her appear five years younger than I had estimated previously. I now wondered if she was much older than me, and concluded she likely wasn’t, a fact that was confirmed when she testified to being only nineteen when Roxanne was born.
I chose not to object to Wells’s testimony about how she learned of her daughter’s death and how that made her feel. Although not in any way relevant, jurors like to hear that stuff, and I thought they might hold it against L.D. if I denied the victim’s mother the opportunity to share her grief.
But when Kaplan asked, “Mrs. Wells, what was your understanding of the nature of your daughter’s relationship with Legally Dead at the time of her murder?” I got to my feet and, still careful to obey the judge’s one-word rule, shouted, “Objection!”
“On what grounds, Mr. Sorensen?” Judge Pielmeier said.
“May we approach, Your Honor?”
She curled her fingers on both hands, summoning us forward.
Judge Pielmeier held sidebars literally at the side of the bench farthest from the jury. Because the judge was a short woman, probably not even five feet tall, and her bench was significantly elevated, she got up from her chair and walked around to the side so she could be heard without having to raise her voice.
“What is it?” she said to me after we’d all assembled.
“Ms. Kaplan, we believe, is trying to establish that the defendant and the victim were no longer in a relationship at the time of her death.”
“And what’s wrong with that?” Judge Pielmeier asked.
“Whatever Mrs. Wells could say on this topic was told to her by Roxanne, and therefore is going to be hearsay.”
Judge Pielmeier obviously hadn’t thought of that because she gave me a subtle nod. She then shifted her gaze to give Kaplan her chance at rebuttal.
Kaplan followed the primary rule for a trial lawyer in this situation—never look concerned. “Mrs. Wells’s testimony on that issue meets the present-sense-impression exception to the hearsay rule,” Kaplan said.
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The present-sense impression was the biggest loophole in the evidentiary rules. It permitted hearsay testimony if the statement at issue was made at the same time the event was perceived. The idea was that the speaker wouldn’t have had enough time to formulate a lie, and therefore the statement was reliable.
I waited until Kaplan was finished before saying, “Your Honor, there was nothing contemporaneous in Roxanne’s statement. If—and I say if—she and my client had broken up, the prosecution’s theory is that it occurred days before Roxanne saw her mother in Stocks. Although Ms. Kaplan should get points for originality, this is just not a situation where the present-sense exception even remotely applies.”
Kaplan had begun to offer a response, saying something about Roxanne’s statement being contemporaneous with her present mental state, when Judge Pielmeier held up her hand, signaling that she’d heard enough.
“Here’s what I’m going to do,” the judge said. “The witness’s statements about what Roxanne told her about the breakup are hearsay. However, Ms. Kaplan, I will allow you to question the witness about what she perceived, and the conclusions she reached from those perceptions.”
Judge Pielmeier might as well have been Kaplan’s personal GPS system for the directions she was giving her. With the latitude the judge was offering, Kaplan would have no trouble getting the evidence she wanted before the jury.
“Your Honor—”
“I don’t want to hear it, Mr. Sorensen. Now, step back.”
I stalked off, attempting to maintain my composure.
When she resumed her direct examination, Kaplan asked, “Mrs. Wells, would you please tell the jury about the last time you saw your daughter?”
“She visited me for Thanksgiving at my home in Stocks, South Carolina. She stayed for a few days, and on the night she returned to New York, she was murdered.”
That was another sign of Kaplan’s witness preparation. Not one prosecution witness ever said Roxanne was killed. She was always murdered.
“Did the defendant accompany Roxanne to South Carolina for Thanksgiving?”
“No, he didn’t.”
“Did you draw any conclusions from the fact that the defendant did not come to your home for Thanksgiving?”
“Yes. I believed that Roxanne had recently ended her relationship with him. If they were still a couple, I’m sure Roxanne would have insisted that he come for Thanksgiving.”
“Mrs. Wells, could you please describe for the jury Roxanne’s general demeanor that weekend?”
“She was happy. Very happy, in fact.”
“Did you draw any conclusions from Roxanne’s happiness that weekend about who had ended the relationship?”
“Yes. It was my strong belief that Roxanne ended the relationship.”
And just like that, the prosecution had established motive. After all, who wouldn’t believe the victim’s mother’s ability to read her own daughter’s moods?
• • •
“Roxanne’s mother is just not going to contradict herself,” Nina said to me during the midmorning break. “Cross-examining her will only make the jury feel even more sympathetic toward her, which is only going to make them hate L.D. even more than they do now.”
“But if I don’t, we lose the opportunity to get before the jury that Roxanne only decided to go to Stocks at the last minute.”
“Dan,” Nina said in a somewhat exasperated voice, “she’s going to deny it. You know that. So what’s the point?”
“The point is that the question puts the issue out there, so the jury’s thinking about it. Besides, I’ll ask her who Roxanne was visiting at the Old Westerbrook, and when she says that she didn’t know, we’ve established she wasn’t so knowledgeable about what Roxanne was doing, which undercuts her claim that she knew that Roxanne had ended the relationship with L.D.”
“Dan, do you really think that’s the way it’s going to play out? I bet you . . . whatever you want, that Roxanne’s mother comes up with some reason that Roxanne had to sign papers or something and that’s why she met Brooks at the hotel, and she’ll claim she knew all about it.”
“If we don’t try, we’re not going to have any other way to get this information into evidence.”
“We have Carolyn Anton; she puts Roxanne in the hotel room.”
“I know, but she doesn’t indicate that Roxanne’s mother didn’t know Roxanne was going there.”
Nina frowned. “This is a bad idea,” she said.
• • •
I began the cross-examination by establishing that we’d already spoken to Andrea Wells, and Wells began her answers by making it clear to me that she would be a hostile witness.
“Mrs. Wells,” I said in as cheery a tone as I could, “we’ve met before, correct?”
“Yes. You came to my home, without any advance notice, and tricked me into speaking with you.”
“I don’t recall it that way, but let’s focus on what you told me at that time. Do you recall telling me that you had not expected Roxanne to visit you over Thanksgiving?”
Kaplan objected, rightfully so. I needed to establish the predicate before I used Wells’s prior statement against her.
Before Judge Pielmeier ruled, I said, “Let me withdraw that and ask it a better way. Isn’t it true that your daughter first made plans to visit you for Thanksgiving only a day or two before the holiday?”
“No, that’s not true.”
Andrea Wells showed me a smug smile. It made me wonder for a moment whether I’d lie under oath to convict the man who I thought killed Sarah and Alexa. I wondered only for a moment, however, because I knew the answer was a resounding yes.
“Mrs. Wells, I take it that you do not recall telling me and my partner, Nina Harrington, that Roxanne had initially told you she had other plans for the holiday, and then at the last moment decided to visit you?”
“I don’t recall it because it isn’t true.”
“And do you know whether your daughter visited anyone at the Old Westerbrook hotel over that weekend?”
“I know that she went there. She told me that she needed to go there for business.”
“And I take it that you are also claiming that when we visited with you a few weeks ago, you did not tell us that you had no knowledge your daughter had ever made such a visit.”
“Once again, that’s a lie.”
“And who was it that she was visiting?”
“She told me, but I don’t remember.”
“Was it Matt Brooks?”
“I don’t remember.”
“Wouldn’t you have found it odd if she met with her married boss in a hotel room over a holiday weekend?”
“Not if she had to sign papers or do something for business.”
I paused, and looked back at the counsel table, where Nina looked at me with I-told-you-so eyes. The next question in my head was Did you know that your daughter had another lover? Or maybe Was your daughter in a sexual relationship with Matt Brooks? And the answer I imagined Andrea Wells giving ranged from not helpful to devastating.
So I looked up at Judge Pielmeier and said, “Your Honor, I have no more questions.” And then, before returning to counsel table, I said to Roxanne’s mother, “Mrs. Wells, please accept my sincerest condolences for your loss.”
• • •
“It’s a good thing they don’t serve liquor here,” I said, referring to the court cafeteria. I’d just brought over my tray, which carried a turkey club, a bag of chips, and a diet cola. Nina’s lunch looked to be the same thing, without the chips.
“You don’t drink when things are tough anymore, remember?” Nina said. “Besides, it really wasn’t as bad as you think. The jury knows she was testifying as a mother, not as a witness. What else is she going to say?”
“Okay, but next time you need to tell me that I’m about to make a big mistake,” I said with a serious voice.
“Okay, next time,” Nina said.
“My guess is that she calls Harry
Davis to the stand next,” I said.
“That’s where you need to be sharp, Dan. Let this one go, and rip him to shreds.”
43
When Kaplan called Dr. Harry Davis to the stand, Marty Popofsky took his place next to me at the counsel table, and L.D. and Nina slid over one. And my heart started to beat a bit faster. It felt like before I crossed Vickie Tiernan in the Darrius Macy trial—this was a make-or-break moment for our case. Perhaps not the make-or-break moment, not if L.D. and maybe Matt Brooks testified, but after Davis had his say, we’d have a pretty good idea if we were winning or losing.
Either Kaplan worked with Davis to create his appearance, or he’d testified enough to know how to play the part. He was right on the money—dark suit, white shirt, red tie, and rimless glasses. Even his thinning gray hair looked professorial, cropped very tight, as if his head had been dusted with snow.
It only got worse for us when Dr. Davis took the oath. He said his name in a voice so deep he reminded me of the guy who narrates movie trailers.
“Are you currently employed, sir?” Kaplan asked.
“Yes. I am the chief medical examiner for the city of New York.”
“Tell the jury about your educational background, Dr. Davis.”
“I’m a product of the New York City public schools,” he said, earning me an I-told-you-so jab in the ribs from Popofsky. “After that, CUNY Queens and Harvard Medical School.”
“Thank you, Dr. Davis. Very impressive. Can we talk for a few minutes about the findings of the Roxanne Wells murder?”
“Certainly.”
“What can you tell us about the time and cause of death?”
“The victim’s time of death was between eleven in the evening and three in the morning. The cause of death was a blow to the head, most likely with a heavy object. About the size and weight of a baseball bat.”
“Can you tell whether the person who murdered Roxanne was right- or left-handed?”
“Yes, the blood spatter and angle of the wounds indicates a right-handed assailant.”
“Please tell the members of the jury whether you reached any conclusion concerning the likely height and weight of the person who murdered Roxanne.”
