by Parnell Hall
“I see,” Steve said. “So, when you testified earlier that if another message came in after a message had been saved it would be recorded after the first message, you were telling us how your wife’s machine functions, were you not? But you’d, never actually tried that with the defendant’s machine.”
Officer Hanson took a breath, said nothing.
“Can you answer that, officer?”
“I’m testifying to what I understand to be the functioning of the machine. The blinking light means the message has been saved. If the message is saved, it will not be recorded over. If another message comes in it will be recorded, but not over the first one, which has been saved. If you want to argue that that’s a conclusion on my part, I suppose you can.” Hanson smiled. “I’m telling you what I know to the best of my ability.”
At the prosecution table, Dirkson nodded approvingly. Hanson was a good witness. The jurors liked him. Winslow’s technical nit-picking wasn’t winning him any fans.
“Thank you, officer,” Steve said. “Now, correct me if I’m wrong, but I believe you stated something else with regard to the functioning of the machine. Didn’t you say that since the red light was on, steady and unblinking, that indicated the message had been listened too?”
“That’s right.”
“I believe you stated that the only explanation for the light being steady and unblinking would be if the message had been listened to?”
“Yes, it is. Otherwise the light would be blinking.”
“I see,” Steve said. “Now, in making that judgment, I wonder if you are referring to your experience with your wife’s machine or with the defendant’s?”
“I’m referring to both,” Hanson said. “They both function the same way. With a message, the light blinks. When you listen to it, unless you save that message, the light becomes steady.”
“I see,” Steve said. “And if I understand your contention, once the light is blinking, the only way if becomes steady is if you listen to the message?”
“That’s right.”
“Is it?” Steve said. “I wonder if you are basing that conclusion on your wife’s machine or the defendant’s.”
“Once again, I am basing it on my experience with both. The play button is the only function on the machine that will change the light from steady to blinking.”
“Really?” Steve said. “What if you turn it off?”
“I beg your pardon?”
“What if you turn the machine off? The light is blinking. Instead of listening to the message, you press the on/off button, turning the power off?”
“Then the light would go out.”
“Exactly,” Steve said. “And when you turn the machine back on again, would that light be blinking or steady?”
Officer Hanson blinked. He opened his mouth. Closed it again.
“I take it you did not perform that experiment, Officer Hanson?”
“No, I did not.”
Steve Winslow turned to Judge Wylie. “Your Honor, at this time I would like to ask that Officer Hanson be excused from the stand in order to perform the experiment I have just described. Also, I would be interested to know what happens if the machine is unplugged and then plugged back in. Perhaps also, a circuit breaker could be thrown to simulate what would happen in the event of a momentary power failure.”
“Objection,” Dirkson said. “If defense counsel wants those test made, let him make them.”
Judge Wylie shook his head. “This witness testified that the tape must have been listened to. Despite the fact I had sustained an earlier objection that it called for a conclusion on the part of the witness for which no proper foundation had been lain. The request is that you lay the foundation. In the event you do not do so, I would have to entertain a motion to strike large portions of Officer Hanson’s testimony.
“Officer Hanson. You are hereby excused from the stand and ordered to report here at ten o’clock tomorrow morning, after having conducted any and all tests requested by the defense, and any others you feel necessary to support your testimony.
“Jurors are instructed not to discuss the case. Court is adjourned until tomorrow morning at ten o’clock.”
39.
“I DON’T LIKE IT.”
Steve Winslow leaned back in his desk chair and looked over at the doorway where Tracy Garvin stood, her glasses folded up and her hands on her hips. “I beg your pardon?”
“What you’re doing in court. The stuff with the answering machine.”
“What about it?”
“It’s all wrong. She heard the message. I know she heard the message. You know she heard the message. The cops know she heard the message. She admits she heard the message.”
“Not to them.”
“I know, not to them.” Tracy said. “That’s how she lied to them. And that’s why you’re doing what you’re doing. But it just isn’t right.”
“Why not?”
“Because it isn’t true.”
“Tracy, everything a lawyer argues in court isn’t necessarily true. If my client came to me and said the guy’s a slimeball and she popped him one, she’s still entitled to a defense and I would still make the same cross-examination.”
“Bullshit.”
“What do you mean by that?”
“You would not. You wouldn’t even touch the case.”
“That’s neither here nor there.”
Tracy’s mouth fell open. “What do you mean, it’s neither here nor there? It’s the whole thing I’m talking about. You’re an idealistic moron who wouldn’t defend a guilty client. That’s where you’re coming from. Straight out of a storybook, but there you are. All right, I accept that. But here you are in court trying to prove black is white. Trying to prove something you know isn’t true.”
“So?”
“How do you justify that?”
Steve shrugged his shoulders, spread his hands. “My client is innocent. Anything I can do to demonstrate that has to be right.”
“This doesn’t demonstrate a thing.”
“Oh?”
“All it does is obscure a point you happen to know is true.”
Steve smiled. “Tracy, I’m finding it hard to follow your logic.”
“Oh? I thought I was being perfectly clear.”
“You are. Just not terribly logical.”
“Oh yeah?”
“No offense meant. But do you recall on the night of the murder when I sent Amy Dearborn uptown to take a cab back?”
“Of course.”
“The reason I did that was so I would be able to argue in court against a fact that you and I happen to know is true—the fact that she actually arrived at the office at around eight o’clock.”
“Yes, of course.”
“Which is what the prosecution is attempting to prove with this answering machine bit.”
“I know.”
“So why is questioning the answering machine evidence any different?”
“Because it’s stupid,” Tracy said.
“Oh?”
“Arguing that the light could have stopped blinking because the machine was turned off and on again. Even if that’s true, you think there’s one juror in the courtroom will actually believe it did?”
“They don’t have to believe it did. They just have to believe it could. Reasonable doubt, that’s what we’re establishing here.”
“I’m glad you think so,” Tracy said. “For my money, you’re beating a dead horse.”
“Thanks for your support. But I happen to be up against it in this case, and the fact is I’m going to take this answering machine stuff and run with it as far as it will go.”
The phone rang. Steve scooped it up.
“Steve, Mark.”
“What you got Mark?”
“Bad news. The light stays on.”
“What?”
“The blinking light. You switch the machine off, the light goes off. You turn it back on, it comes on blinking.”
&
nbsp; “Shit.”
“Same thing if it’s unplugged. You plug it back in, it starts blinking again.”
“Are you sure?”
“Yeah. I got the same make, same model, just like you said. And it’s a total washout. The light blinks. I’m sorry, but there you are.” Taylor exhaled. “Best I can tell, it would take a sledge hammer to make the damn thing stop.”
40.
OFFICER HANSON WAS PRACTICALLY beaming. As he took his place on the witness stand, it was clear to the jury that he could hardly wait to give his testimony.
“Officer Hanson,” Judge Wylie said. “We adjourned court yesterday so that you could conduct certain tests. Might I ask if those tests have been completed?”
“They have, Your Honor.”
“Very well. I remind you that you are still under oath. Proceed, Mr. Winslow.”
“Thank you, Your Honor. Officer Hanson, you say that you have conducted the tests I requested?”
“Yes, I have,” Hanson said. He reached into a paper bag that he had brought with him and pulled out an answering machine. “In addition to conducting the tests, I have brought the answering machine itself into court and I am prepared to demonstrate my findings.”
At the prosecution table, Dirkson was grinning from ear to ear. The answering machine evidence had put Steve Winslow in an impossible position. He had to either reject the offer of a demonstration of the evidence he himself had asked for, or go ahead and put on the evidence that contradicted his own theory.
“Well, that’s mighty considerate, Officer Hanson,” Steve Winslow said. “When you refer to this as the answering machine, do you mean this is Amy Dearborn’s answering machine?”
“That’s right.”
“This is the one taken from her apartment?”
“Yes, it is.”
“You identify it as such?”
“Yes, I do.”
“Then I suggest we mark it for identification as Defense Exhibit A.”
“That’s a prosecution exhibit,” Dirkson said.
“Well, you didn’t choose to introduce it,” Steve said. “I am, so let’s mark it for the defense.”
“Mark it any way you like,” Dirkson said. “I think you’ll find it’s not for the defense.”
“That will do,” Judge Wylie said, banging the gavel. “This sparring, while still good natured, is wholly inappropriate. Mark it and proceed.”
When the answering machine had been marked, Steve Winslow said. “Now, Officer Hanson, you say you are prepared to demonstrate your findings?”
“Yes, I am.”
“You have a power source for the machine?”
“I believe the prosecution has run a line.”
“We have, Your Honor,” Dirkson said. “If it please the court, we have run an extension cord to right in front of the jury box. And we have a stool to place the answering machine on so the jurors can see it.”
“Very well,” Judge Wylie said. “Officer Hanson, if you would care to set this up.”
“Yes, Your Honor,” Hanson said. He took the answering machine, placed it on the stool and plugged it in.
“All right, officer,” Steve Winslow said. “If you’d just like to describe what you’re doing.”
“Yes, of course,” Hanson said. “As you can see, I’ve plugged the machine in. Notice the light on the machine. It is now off. See this button? This is the on/off switch. I press it on—note the red light is now on.”
“Indicating what?” Steve said.
“That the machine is turned on ready to take messages. The fact that the light is not blinking indicates that there are no new messages since the machine was turned on.”
“I see.”
“Now then,” Officer Hanson said. “Watch what happens when I push the button marked save.” He did so. The light on the machine began blinking. “You’ll notice that the light is now blinking. That’s because there was one message on this tape at the last time the messages were set. Now then, look what happens when I press the button marked play.”
He did so. The blinking light stopped blinking. The tape whirred. Then Officer Hanson’s voice came through the speaker, saying, “Testing. Testing. This is Officer Hanson, conducting a test of the answering machine to see what happens with the blinking light.”
Then there was a beep and the answering machine clicked off.
“You will notice,” Officer Hanson said, “that the light that was blinking is now steady. That’s because we listened to the message. That’s how the light goes from blinking to steady—when the messages are played back.”
“And what about the other methods I suggested?” Steve Winslow said.
“Let me show you,” Officer Hanson said. “First off, let’s get the light blinking again.” He pressed a button on the machine. “I’ve pressed the button marked save. That saves the message you just heard. It’s now blinking, indicating that that message is on the machine.”
He held up a finger. “Now then. You asked me what would happen if I turned the machine off and then turned it on again. I will do so now.”
Hanson pressed the button and the light went off.
“There,” Hanson said. “I’ve pressed the on/off switch, turning the machine off. Now then, I’m going to turn it back on again.”
Hanson pressed the button again.
The light began blinking.
There was a murmur in the courtroom. Some of the jurors looked at each other. They were clearly impressed.
“Now then,” Officer Hanson said. “You also asked what would happen if the answering machine was unplugged.”
Hanson took the plug, pulled it out of the extension cord, The light went out.
“Same thing,” Hanson said.
He plugged it back in again.
The light resumed blinking.
“You also asked about a power failure and suggested that we throw a circuit breaker. I don’t know if Judge Wylie would like us to turn out every light in the courtroom, but I can tell you that when I performed the test last night, throwing the circuit breaker had absolutely no effect on the blinking light. It just kept blinking. It keeps blinking until you listen to the message.”
“Is that so?” Steve Winslow said.
“Yes, it is,” Officer Hanson said. “We’ve performed every test possible on the machine. The conclusion is inescapable. For the light to go from blinking to unblinking you have to listen to the message. There’s no way around it.”
“That’s your conclusion?” Steve Winslow said.
“Yes, it is.”
“What I mean is, that’s not a fact, that’s just your conclusion.”
Hanson smiled. “If you want to characterize it that way, I suppose you can. It’s a conclusion I can draw. It’s a conclusion you can draw. It’s a conclusion the jury can draw. From the tests conducted, it happens to be the only conclusion.”
“Is that so?” Steve Winslow said. He reached in his pocket, pulled out a micro-cassette. “Your Honor, I ask that this be marked for identification as Defense Exhibit B.”
“Objection, Your Honor,” Dirkson said. “Where did that tape come from?”
Steve Winslow smiled. “I just pulled it out of my pocket.” He handed it to the court reporter. “And now I’m marking it for identification. Which I have every right to do. If you’d like to object to me introducing it into evidence, why don’t you wait till I do so?”
Judge Wylie banged the gavel. “Once again, gentlemen, I would caution you.”
When the exhibit had been marked, Steve Winslow said, “Now then, Officer Hanson. I show you a micro-cassette marked for identification as Defense Exhibit B and ask you if you have ever seen it before?”
“No, I have not.”
“Fine, Officer Hanson,” Steve Winslow said. “I ask you to remove the tape that is now in the answering machine.”
“Very well.” Hanson flipped up the cover, removed the tape.
“Now then,” Steve said. “You’ll notice I am inse
rting this micro-cassette, the one marked for identification Defense Exhibit B.”
Steve Winslow did so, and closed the lid. “Now then,” Steve said. “You’ll notice the light is steady. Is it not?”
“That’s right.”
“Fine,” Steve said. “I’m now pressing the button marked save.” He did so. The light began blinking. “You will notice that the light is now blinking, indicating that there is one message saved on the tape. Do you see that?”
“Yes, I do.”
“Fine,” Steve said. “Now, watch this.” He reached on the side of the machine. “This is a volume control lever. It is set at maximum.” Steve pulled the lever. “I am now turning the volume control level from maximum down to zero. I am now pressing the button marked play.”
Steve did so, and walked away from the machine.
There came a click, then the faint whir of the tape turning. That went on for several seconds. Then there was another click. Then silence.
Steve Winslow smiled at the jury, then turned back to the witness. “Officer Hanson,” he said. “Do you notice that the blinking light is now steady?”
“Yes, I do.”
“Officer Hanson, would you now turn the volume control level on the machine from zero back to maximum?”
Hanson did.
“And now press play.”
There was a beep, then Steve Winslow’s voice came crackling over the speaker. “Good morning, Officer Hanson. This is Steve Winslow. Tell me, officer. You didn’t hear this message when I played it back just now, did you?”
41.
DIRKSON FIRED BACK WITH Oliver Branstein. Not that Dirkson thought he had to. Steve Winslow’s stunt with the answering machine was a hollow victory at best. If anything, all Winslow had managed to do was blunt Officer Hanson’s dramatic demonstration of the blinking light. Big deal. Dirkson wasn’t concerned. Wait till Winslow got a load of this.
Oliver Branstein was sworn in and testified, that he was the proprietor of the music store on West 47th Street and had been for the past seven years.
“I see,” Dirkson said. “And on the night in question—the night of June tenth—were you in your store then?”
“Yes, I was.”
“What time did you close?”
