“Say what?”
“That the other girls were willing to have sex with him.”
“Yeah.”
“He didn’t have to force them. It was okay with them. Better than okay.”
“Yeah,” she said again. “It was okay with them, I guess.”
“None of the girls who had gone up on the roof with Marvin and had sex with him told you he had forced them to, did they? That he forced them to do it against their will?”
She nodded. “Nobody ever told me he made ’em, if tha’s what you mean.”
“That’s exactly what I mean,” he said. “But you weren’t going to,” he went on. “You weren’t going to go all the way.”
She shook her head. “No,” she said.
“Because you were afraid?”
She nodded.
“Does that nod mean yes?” he asked.
“Yeah,” she said. “I was afraid.”
“Because you’d never done it before?”
“Yeah. That’s why,” she agreed.
“What I’m hearing,” Wyatt said, “is that you wanted to have sex with Marvin White, but you were afraid to. Is that correct?”
“Objection, Your Honor! That is not what the witness said. Counselor is putting words in her mouth.”
“Sustained.”
“Mavis.” He looked her in the eye. “Did you want to have sex with Marvin, but you were afraid to?”
She fidgeted in her chair.
“Answer the question, please,” Wyatt pressed her.
“I don’t know,” she answered finally.
“You don’t know if you wanted to, or you don’t remember if you wanted to?”
“Both,” she admitted.
“So maybe you did, but you don’t remember.”
“Objection!”
“Overruled.” Grant turned to Mavis. “Did you want to, or you don’t remember whether you wanted to or not?” he asked her.
“I don’t remember,” she answered meekly.
Wyatt stared at her, taking his time before asking his next question, then raising his voice a notch. “At the time you were allegedly raped you had a juvenile record of your own, didn’t you, Mavis.”
“Objection,” came from the prosecution table. “Ms. Jones’s record, if there is one, is not germane to this questioning.”
“It absolutely is, Your Honor,” Wyatt answered quickly. “This witness is testifying to something that is considered hearsay under most circumstances. Her credibility is important in judging whether or not she’s telling the truth.”
Grant nodded. “Overruled,” he said.
Wyatt picked up her rap sheet. He showed it to her. “Had you ever been arrested at the time you accused Marvin White of raping you?” Wyatt asked.
“Yeah,” she said grudgingly.
“You had been arrested for shoplifting?”
“Yeah.”
“Using a stolen credit card,” he continued.
“That wasn’t me stole it,” she said. “That was …”
“A friend?” he finished for her.
“Yeah.”
“But you used it.”
“Yeah.”
“So you weren’t such an innocent little girl after all, were you? You’d done a lot of bad things. You just hadn’t gotten around to having sex yet.”
“Objection!”
“Sustained. Save the editorializing for your summation, Mr. Matthews.”
“Yes sir.” He paused to take a sip of water. Then he picked up another document and skimmed it. He walked over to the witness stand and showed it to her. “Do you recognize this?” he asked her.
She looked at it, then turned away. “Yeah. I seen it.”
“Would you tell the court what it is.”
“Arrest sheet.”
“Your arrest sheet?”
“Yeah,” she said. “It’s mine.”
He looked at it again. “This is dated … let’s see about six weeks ago. You were arrested six weeks ago?”
“Yeah.”
He looked at the rap sheet again. “For prostitution? And possession of crack cocaine.” Reading on, he said, “You solicited an undercover policeman for the purpose of having sex for money? And when you were arrested and booked they found three vials of crack in your purse?”
“They wasn’t mine,” she protested. “They was my girlfrien’s. I was holdin’ ’em for her.”
He nodded. “What’s the situation with this arrest?” he asked. “Have you gone up for trial yet?”
She looked at Abramowitz.
“Or have the charges been dropped,” he continued without waiting for her to answer.
“Yeah,” she said under her breath again.
“Why were these charges dropped, Mavis? Did you do something for the police, so they would drop the charges?”
“Objection!”
“Overruled,” Grant shot back before Abramowitz could explain why she was objecting.
“Did you make a deal with the district attorney’s office?” Wyatt asked her. “That if you came in here and testified against Marvin White they would drop all charges against you?”
The girl looked down.
“Did you?” he demanded.
“Yah,” she said. “They cut me a deal.”
Wyatt paused to allow the jury, all of whom were writing in their notebooks as fast as they could, to catch up to him. Then he proceeded.
“It says here you have a child. A two-year-old girl named Abyssinia. Is that true?”
She nodded.
“But you’re not married.”
She shook her head. “No, I ain’t married.”
“Do you know who the father of your child is?” he asked.
She glared at him under hooded eyelids. “I ain’t sure.”
“So around the time you became pregnant with her you’d had sex with more than one man. That’s true, isn’t it.”
“Yeah.”
“Not too long after you claimed Marvin took your virginity.”
“I guess. I don’t know.”
“Six months after Marvin White allegedly raped you at knifepoint, when you had never had sex before, you were sleeping with so many men that you don’t know who got you pregnant. Isn’t that right?”
“It wasn’t all that many,” she said.
Wyatt stepped back and checked the jury for their reaction to that. Some of them were shaking their heads in disbelief.
Looking at her again, he asked, “Is Marvin the father?”
Her mouth flew open. “Hell, no!” she said emphatically.
“You and Marvin never had sex again, consensual or not, after that one time, did you?”
“No. We never did.”
“He didn’t want to be bothered with you, did he? Especially after you trumped up that phony rape charge on him, right?”
“Objection!” Abramowitz screamed.
“Sustained!” Grant swung his gavel on that one. “That kind of questioning is inflammatory and unacceptable,” he admonished Wyatt sternly.
Wyatt nodded. Glancing at her rap sheet again, he asked, “Did the police threaten to put Abyssinia in social services if you didn’t cooperate with them on this case?” he asked.
She mumbled something unintelligible.
“They said they were going to take her away from you if you didn’t cooperate, isn’t that right?”
“Yeah. They said they might.”
“That scared you, didn’t it?”
“Yeah. I don’t want nobody takin’ my baby.”
“I can understand that,” he said sympathetically. “I have a child myself, and I wouldn’t want anyone taking her away from me.”
He leafed through some pages in front of him again until he found the one he was looking for.
“After Marvin allegedly raped you, you didn’t tell your mother, did you?”
She stared at him. “No.”
“You were afraid to.”
She nodded. “Yeah.”
“Objection, Your Honor. She was raped, she wasn’t ‘having sex,’ as opposing counsel so delicately puts it.”
“If your mother found out you were having sex with a boy from Sullivan Houses, she would have been angry with you, wouldn’t she?” Wyatt asked. “Enraged?”
“Real angry,” the girl agreed.
“So if you were having sex with a boy, you wouldn’t tell her, would you?”
“Objection!”
“Overruled.”
“So if she ever found out you were, you would have to lie about it, wouldn’t you?”
“Objection!” Abramowitz was on her feet.
“Overruled!”
“So when you went up on the roof with Marvin White, a boy all the girls liked, and had sex with him up there, you couldn’t tell your mother, could you?” he said, his voice rising.
“Objection!”
“Overruled!” The gavel came down hard.
“So that when your mother found your bloody underpants, you couldn’t tell her the truth, could you? That you’d had sex with Marvin of your own free will!” Racing on: “So you told her you’d been raped—because you couldn’t tell her the truth. You lied to her and to the police because you were afraid of telling the truth, which is that you had sex with Marvin White of your own free will! That you went up to the roof with him knowing that was what was going to happen, and you wanted it to happen! You wanted to have sex with this big, good-looking boy all the girls talked about, and when you did lose your virginity to Marvin you lied to your mother and said he raped you, because it was the only thing you could think of to say that would keep her from killing you!” His voice dropped, almost to a whisper. “And that’s the truth, isn’t it, Mavis!”
Again, prosecution and defense met with Judge Grant in his chambers. Alex Pagano joined his team to take part in this argument. Earlier, Wyatt had privately apologized to Grant for his aggressive conduct, but not for attacking Mavis Jones as he had. Grant accepted the apology and the incident was behind them.
“This is a thorny one,” Grant said, considering the prosecution’s latest request. Pagano and Abramowitz wanted to introduce Marvin’s botched armed-robbery attempt, since both crimes had occurred on the same night. To that end they had subpoenaed the Korean shop owner as a witness. In addition, they wanted to bolster their case by using the portion of the videotape showing the attempted robbery, which would clearly reveal Marvin’s use of deadly force on the same night he murdered Paula Briggs—a pattern of ongoing, habitual criminal intent.
“Hasn’t that case already been settled?” the judge asked Abramowitz and Wyatt.
“Yes, Your Honor,” Wyatt answered. “We have a binding agreement.”
“Wait a minute,” Pagano protested. “That was before this indictment came down. I don’t consider any settlement made then to be binding now, Your Honor.”
Wyatt took the agreement out of his briefcase and handed it to the judge. “Signed by all parties concerned,” he said.
“That agreement is worthless,” Pagano protested again. “It was done without subsequent knowledge of these crimes.”
“So what?” Wyatt countered. “Once it’s over, it’s over. It doesn’t matter if new information comes up afterward, prosecution can’t appeal after the fact—any first-year law student knows that.”
Grant put his hand up for them to quit bickering while he read the settlement agreement. He looked up, taking off his reading glasses and folding them into his shirt pocket.
“The defense’s position regarding the legality of that plea bargain is the right one,” he said. “That case has been settled. It’s on the record.” He looked at Wyatt. “Your client has pleaded guilty to a violent crime. And under the rules of evidence that record can be used against him if it helps establish a pattern, which this clearly does.”
“Bringing in the witness is permissible, I agree with that, Your Honor,” Wyatt said. “But to use videotape of it as evidence is of great concern to us. It’s inflammatory and will color the jury’s attitude toward my client.”
“I understand your concern,” Grant acknowledged. “But if I’m allowing prosecution’s witness to testify I don’t know what grounds would be for denial of admission of those videotapes. How do you plan to argue it?” he asked.
He was giving Wyatt the chance to help him deny admitting the tapes into evidence; he was still smarting from the Mavis Jones fiasco of the day before, Wyatt figured.
Pagano jumped in with both feet. “There are no grounds, Your Honor,” he argued vigorously. “The witness and the tapes are of a piece. And allowing someone as sharp as defense counsel to find a way is improper.”
“Thanks for the kudo,” Wyatt said, smiling at his opponent. “I’ll use it in my memoirs.” He looked at Grant. “I don’t know how to help you, Your Honor. I can’t find any precedent that will allow me to, since you’re going to allow the witness to testify.”
“You’re not going to contest this?” Grant asked in surprise.
“I can’t find a reason to back me up, Your Honor. I wish I could,” he added ruefully. “It’s going to hurt.”
Grant gave him back the document. “In that case, I have no option but to let this videotape be admitted into evidence.”
“Thank you, Your Honor.” Abramowitz turned to Wyatt. “Sorry, Charlie,” she said, dripping sarcasm onto Grant’s threadbare carpet.
He gave a little shrug and smiled. “Can’t win ’em all.”
DARRYL GRABBED A COUPLE of Rolling Rocks from his fridge, twisted the tops off, and handed one across the desk to Wyatt. “Man, you’re walking a tightrope across the Grand Canyon without a safety net,” he said, his voice etching concern. “Are you sure this is a workable angle of attack?”
“No,” Wyatt answered candidly. “I’m not sure at all. It could blow up in my face—in Marvin’s face. But I have to be aggressive in the way I try this case, take some chances. He’s sixty to seventy present convicted already, so playing it book-safe isn’t going to cut it. As long as it’s my case I’ve got to go with a strategy I think might work. I know it’s high-risk, but sitting on my ass will kill his.”
Darryl nodded. “I know where you’re going. It’s a risky tactic. I don’t know if I’d have the guts to try it.”
“Maybe I’m too damn dumb and inexperienced to know any better.”
“No way, José. You can’t pull that neophyte shit anymore. You’re doing as good a job as anybody could.” He raised his bottle in salute.
“Thanks.” Wyatt sucked down some brew. “Coming from you that means a lot. You know,” he mused, “prosecutors are used to rolling over people like Marvin White. A couple days picking a jury, two or three days prosecution testimony, a day or two for the defense, it goes to the jury and out rolls another guilty verdict. Assembly-line justice—it’s what they’re used to, and it’s what works for them. The poor outgunned defendant’s down for the count before he ever saw the punch coming. And I don’t mean to cast aspersions on Walcott’s office when I say that. They do as good a job as they can, but the more I’m around there the more I realize how stacked the odds are against them.”
He took another swallow of beer. “My feeling is you throw them some unexpected moves, change up on your fastball, and they don’t know what to do—they spin their wheels and crash into a wall.” He paused. Soberly, he added, “At least I hope that’s what I can force them to do.”
OVER ONE MORE PRO-FORMA objection from Wyatt the Korean shop owner was on the stand, as impassive as a stone Buddha. Abramowitz was questioning him about the happenings of that night.
“Had you ever seen the defendant, Marvin White, before that night, Mr. Kwon?” she asked. She looked over to the defense table and pointed at Marvin.<
br />
The shopkeeper looked over. “I see him.”
“He had been in your store before?”
“Yes, he come in before.”
“There’s no doubt in your mind? You couldn’t be mistaking him for someone else?”
The man shook his head. “I see him in my store before. He always sulking around like he’s gonna shoplift something. So I keep eye on him. I know him,” he said forcefully.
“Had he been in the store before on the night he tried to rob you?”
The man bobbed his head. “He come in earlier.”
“What did he do?”
“Buy cigarettes.”
“He bought a pack of cigarettes. Do you remember what kind?”
“Marlboro cigarette. Regular box.”
“He bought a pack of Marlboros.” She looked over at the jury. “Then what did he do?”
“Leave store.”
“All right.” She glanced at her notes, looked up. “He came back later?” she asked.
Another nod. “He walk in when no one in store. Like he wait until it empty.”
“Than what did he do?”
He told the story; how Marvin had put a gun to his face, made him take the money out of the cash register, tried to shoot him. The gun had jammed, giving the shop owner the chance to get his own shotgun out from underneath the counter. That as he had raised it in self-defense Marvin had tried to shoot him again. That upon seeing him about to fire, Marvin had turned tail and run, and he had tried not to shoot, but he had no control over his emotions and his finger pulled the trigger involuntarily.
“We have collaborating evidence of this witness’s account, Your Honor,” Abramowitz said, “which we would like to present now.”
Grant nodded. “Go ahead.”
A large television set connected to a VCR was wheeled into the room and set up at an angle that allowed the jury to easily see the screen. Abramowitz inserted the tape. “Would you lower the lights, please.”
The room lights were dimmed. Abramowitz hit the play button on the VCR remote. The tape started.
The jury had been properly attentive before, listening to the prosecution witnesses’ testimony. Actually seeing the commission of this crime, however, ratcheted their attention span up. As there was no sound on the recording, the dialogue between Marvin and the shop owner could not be known conclusively. In addition, since the clicks from the misfiring of Marvin’s gun weren’t heard, his intention could not be satisfactorily judged. The camera was too far away and the lens angle was too wide for anyone who hadn’t actually been there—anyone other than Marvin and the shop owner—to be able to tell whether he was pulling the trigger, and that only because the gun jammed was the store owner not killed; or conversely, that he was not pulling the trigger at all. It could be argued either way.
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