“Uh,” Wolcott looked around for an explanation. “I think he’s the one who mentioned that on the recording.”
Talon shook her head. “No. It was you. You brought it up. You described the joke. Luke just agreed with you.”
Wolcott didn’t say anything.
“Do you want me to cue it up so we can listen to it again?” Talon challenged.
“No, that’s not necessary,” Wolcott assured. “If you say I said it first, then I’m sure that’s correct. I guess we must have talked about some of the details before I turned on the recorder.”
“I guess so,” Talon sneered. “No further questions.”
Cecilia stood up to conduct a brief re-direct examination. “Detective Wolcott, did you make any promises to the defendant regarding what charges he might face for his conduct that evening?”
“No,” Wolcott said. “I just asked him to tell me the truth.”
“And you recorded that truth on the recording we just listened to?”
“Yes, ma’am.”
“No further questions.” And Cecilia sat down again.
“Any re-cross examination based on that, Ms. Winter?” the judge asked.
“Yes, Your Honor,” Talon answered.
She marched right up to Wolcott. “That ‘truth’ you recorded,” she used her fingers to make air quotes around the word ‘truth’, “you spoon-fed that to him before you went on tape so he would confess to the robbery and you could arrest him for murder.”
Wolcott narrowed his eyes at Talon. “Is that a question?”
Talon scoffed. “No, I guess it’s not. Nothing further.”
That concluded Wolcott’s testimony, and with it, the State’s case-in-chief. Cecilia made it official by standing up and announcing, “The State rests.”
Judge Kirshner looked down at Talon. “Does the defense intend to call any witnesses?”
Talon stood to address the judge. “Yes, Your Honor,” she said. “But first, I have a motion.”
CHAPTER 46
There was a standard practice in criminal cases. After the State rested, the defense made what was known as a ‘halftime motion.’ The motion itself was simple. Ask the Court to dismiss the case because the prosecution had failed to put on sufficient evidence to allow the case to proceed to the jury. The legal jargon for that level of sufficient evidence was ‘prima facie case.’ Basically, it just meant any jury could possibly find the defendant guilty. In a drug case, if no witness ever testified that the white powder found on the defendant was actually chemically tested and found to be cocaine, then the judge should throw the case out—to prevent the jury from convicting in error. And it was all predicated on the knowledge, usually left unspoken, that juries can’t be trusted to do the right thing in that sort of circumstance, because they almost always just rubber-stamp whatever the prosecution told them in opening statement.
That was all well and good for a drug case, or maybe a charge of felon in possession of a firearm where the evidence room lost the firearm and the State can’t actually say for sure it was really a gun and not a fancy cigarette lighter. But in a murder case, it was pretty much impossible to win the motion. Especially when the prosecution introduced a confession.
Still, it was almost malpractice not to make the motion because failure to do so would preclude the appellate attorney from making similar arguments on appeal.
So, everyone in the courtroom knew what Talon was about to do. And everyone knew what the judge was going to do. It was almost boring.
“What’s your motion, Ms. Winter?” Judge Kirshner practically yawned once the jury was safely out of hearing in the jury room.
“It’s a halftime motion, Your Honor,” Talon practically admitted. But she had a surprise too. She hated being bored too. “Combined with a motion to dismiss for prosecutorial misconduct.”
Now, that was not boring. And not at all expected.
“What?” Cecilia shot to her feet, incredulous. “Misconduct? What misconduct?”
“Knowingly putting on false evidence,” Talon explained.
“Wha, what false evidence?” Cecilia stammered.
“That so-called confession,” Talon answered. “It was analyzed by an expert and found to be false. I gave you a copy of her report. I believe you may have also received a copy through other means. In any event, you didn’t have anyone else analyze the confession, so the only independent evidence is that my client’s alleged confession was false. But you admitted it into evidence anyway. That’s misconduct.”
Judge Kirshner interrupted with a clearing of her throat. “Really, Ms. Talon? That’s your motion?”
“That’s my motion, Your Honor,” Talon confirmed. “And I’m sticking to it.”
“Making your record,” Kirshner observed.
“Yes, Your Honor,” Talon answered.
“Fine,” Kirshner harrumphed. “Your record is made. And your motion is denied.”
That was fine with Talon. She knew she wouldn’t win. She just wanted to poke Cecilia in the eye.
“Can I be heard, Your Honor?” Cecilia complained.
Kirshner raised an eyebrow at her. “You want to be heard on a motion where I’ve already ruled for you?”
“I just want to make a record,” Cecilia said.
“She doesn’t get to just make a record, Your Honor,” Talon interjected. “If I win, there’s no appeal. She doesn’t need to make a record.”
Kirshner nodded down at Cecilia. “Ms. Winter is right. If you just want to complain about someone calling you unethical, I would save it until you get back to your office.”
“But, Your Honor,” Cecilia insisted.
Kirshner sighed. “She’s just taunting you, Ms. Thompson.”
Cecilia took a moment, then looked over at Talon.
Talon smiled at her. “Not ‘just’.”
Cecilia took another moment, then exhaled sharply and stood up straight. “Fine. Thank you, Your Honor. I have nothing to add to this motion.”
“Good,” Kirshner replied.
“But I expect to have my own motion regarding Ms. Winter’s conduct,” Cecilia went on. “It will be ready in the morning. I’d like to do a little bit of research before presenting it to the Court.”
Kirshner looked at Cecilia for a long moment, then sighed and turned to Talon. “Any objection to starting in the morning, Ms. Winter?”
“None, Your Honor,” Talon answered cheerfully. “It will give me extra time to prepare before starting my case-in-chief.”
Cecilia looked over at Talon. “That was your plan all along.”
Talon just smiled. “See you in the morning.”
CHAPTER 47
The extra few hours her game with Cecilia had afforded Talon weren’t actually all that necessary. It was never bad to have extra time to prepare, especially in the middle of a trial, but Talon’s first witness was Dr. Natalie Ross. Talon didn’t really need extra time to prepare for her testimony. Ross was a professional who had testified dozens, even hundreds of times. Talon just needed to remember to get out of the good doctor’s way.
The next morning found Talon and Luke at the defense table, Dr. Ross seated in the front row of the gallery, the corrections officers guarding the exit, and the bailiff and court reporter at their respective stations—all waiting for Cecilia Thompson to arrive.
“Where’s the prosecutor?” Luke whispered to Talon. He was wearing the blue suit again. “Wasn’t she going to go after you for something since you went after her?”
Talon chuckled slightly. “Yeah, something like that. But if she did her research—the right research—she’ll just ask the judge to move on.”
Cecilia burst through the courtroom doors at that point. She looked uncharacteristically disheveled. She had a file folder and some books barely trapped against her body with one arm and while her other arm was pulling a rolling briefcase, that got hit by the closing courtroom door. She was still dressed perfectly, and her hair and makeup were flawless, but there w
as an unsettledness about her which Talon didn’t recognize.
“Sorry, I’m late,” Cecilia panted to the bailiff when she reached her table. Then she glanced up at the clock. “Oh, it’s only 8:59. I guess I’m not late after all. Whew.”
Talon took a moment to appraise her opponent. She could see the calm returning to her even as she set her books down and became acclimated to her familiar surroundings.
“Are you still bringing some sort of motion to get back at me?” Talon asked.
“What?” Cecilia answered, then laughed. “Oh, that? Oh, no. Of course not. That was just a ploy to buy time.”
Talon cocked her head at her.
Cecilia tipped her own head at Dr. Ross. “You aren’t the only one who wanted some extra time to prepare for your expert witness’s testimony,” she whispered.
And before Talon could think of a reply, Judge Kirshner entered the courtroom to the formal cry of her bailiff.
“Are we ready to proceed with witnesses?” Kirshner asked as soon as she sat down. That was code for, ‘We’re not doing your stupid motion, are we, Ms. Thompson?’
“The State is ready, Your Honor,” Cecilia answered simply. Then, she went ahead and addressed the real question. “I will not be bringing any motions after all. At least,” a quick side glance at Talon, “not at this time.”
Talon suppressed the urge to shake her head. Mind games? From Cecilia Thompson? Prosecutors weren’t supposed to do that. Maybe she should make another motion.
“Anything from the defense, Ms. Winter?” Judge Kirshner asked.
Talon shook herself from her thoughts. “Uh, no, Your Honor. Thank you, Your Honor. The defense is prepared to call its first witness, Dr. Natalie Ross.”
“Excellent,” Judge Kirshner said. “Bring in the jury.”
CHAPTER 48
Dr. Natalie Ross strode into the courtroom, all presence and confidence. She spent a good portion of her time flying around the country, attending conferences, delivering speeches, signing books, and—fortunately for Talon, and Luke—testifying in court. She was used to travelling, so even though she arrived on a late flight and spent the night in the nearest 3-star hotel to the courthouse, she looked every bit the prepared, intelligent, trustworthy professional she was touted to be.
At least she looked that way to Talon, as she watched Ross step forward and get sworn in by the judge. Talon would just have to hope the jury thought so too.
“Good morning,” Talon greeted her witness as she took her seat on the witness stand. “Could you please state your name for the record?”
“My name is Natalie Ross.” Ross turned to the jurors to answer Talon’s question. Cops weren’t the only professional witnesses who got training on how to testify. And there was a reason the best witnesses delivered their answers to the decision-makers, not the question-askers. The jurors loved it.
“How are you employed, Ms. Ross?” Talon continued.
Again, a turn to the jurors. “I am a professor of psychology. I am also an author and professional speaker. My books and speeches are also on the subject of psychology.”
“And do you also testify in court cases, Dr. Ross?” Talon asked the obvious question.
Ross smiled at the jury. “It would appear so,” she said. A few of the jurors chuckled.
Nice, thought Talon. They like her already.
“But seriously,” Ross continued. “Yes, I do occasionally testify in cases when asked and when I feel it’s appropriate.”
“Do you have any special education or degrees related to your current occupations?” Talon asked. She felt stupid asking such basic questions, especially ones she so obviously already knew the answers to, but the evidence rules required her to ask open-ended questions of her own witnesses. And anyway, it gave the jury a chance to hear how awesome Dr. Ross was.
“Yes,” Ross told the jurors. “I have a bachelor of science in psychology and biology and a Ph.D. in psychology. I also attend continuing education courses and specialized seminars in my area of concentration.”
Talon appreciated the setup for her next question. “And what is your area of concentration, Dr. Ross?”
Dr. Ross smiled again and turned to the jurors. “My area of specialization is behavioral and cognitive psychology, and within that, my concentration is on the psychology of risk and reward.”
“Risk and reward in behavioral and cognitive psychology,” Talon repeated back, in part to make sure the jury got it all. “Does that have any application in the area of criminal law?”
“Yes,” Ross answered. “Absolutely.”
Talon nodded. She knew that. “Please explain.”
It wasn’t actually a question, and it called for an objectionably narrative answer, but Cecilia seemed to be willing to let it slide. Not least, Talon suspected, because Ross was an engaging witness and the topic was actually somewhat interesting. Better than laying the evidentiary foundation for the admission of business records.
Ross turned again to the jurors. “Well, you see, most crimes have few, if any, witnesses. That’s not always true, of course. Crimes that are committed in the heat of the moment, perhaps due to an emotional outburst or mental illness, those may have many witnesses. But generally speaking, when a person commits a crime, they take efforts to avoid detection. They will wait until a business is closed for the night; they will wear gloves to prevent leaving fingerprints; they may craft an alibi in advance; and if there are multiple actors, they will work to ‘get their story straight.’ And another of these ways to reduce the risk of detection is the well-known and ominous threat of ‘no witnesses.’”
Talon took a moment to watch the jurors. They were loving it, nodding along at all the right moments. Good.
“So, how does all of that relate to behavioral and cognitive psychology?” Talon asked.
“In behavioral and cognitive psychology, we’re interested in why people behave in the ways that they do,” Ross explained. “Regarding risk and reward, we focus on why people risk negative consequences in search of positive rewards. In the context of criminal behavior, people are far more likely to commit a crime if they think they can get away with it. In fact, there are several rather disturbing studies where people self-report that they would be willing to commit crimes—even serious and violent crimes—if there were a guarantee they would never be caught.”
“So, people who commit crimes try not to get caught,” Talon said. “That doesn’t seem difficult to believe.”
Ross laughed. “Oh no, of course not. That’s just the backdrop. The part that’s really interesting is why so many people who have spent so much time planning to get away with a crime would nevertheless confess to the authorities when caught. The confession rate is astonishingly high if one assumes almost everyone who confesses had made at least some preparation not to get caught in the first place.”
Talon nodded. “That does seem surprising, I suppose. Does psychology provide an answer to that question?”
Ross smiled and shrugged. “It tries. We’re always learning, of course, but we learn because we ask. And this was an area I decided to start asking about.”
“So, what did you learn?” Talon asked.
“Like all the best answers,” Ross said, “this one is simple. When faced with a decision, people assess their options and choose the one they think will lead to the greatest reward. The difference between the criminal who is preparing not to be caught and the criminal who has been caught is very basic: he’s been caught. The situation has changed significantly, and so the calculus of what leads to the greatest reward changes as well.”
“How does that relate to confessions?” Talon asked. “Or perhaps I should say alleged confessions.”
“Let’s call them incriminating statements,” Ross suggested. “Confession is a weighted word. It assumes that the statement is true, that the person making the statement really did the things they say they did, and that they are confessing to some sort of wrongdoing. An incriminating statement is
merely that: a statement made by a person which incriminates them in some specific criminal activity, whether it’s true or not.”
“Okay,” Talon agreed. “Incriminating statement. “So, why would so many people who want to avoid detection suddenly provide incriminating statements after being detected?”
“There is really only one reason,” Ross told the jurors. “The person calculates that making the incriminating statement will provide them with greater benefits than not making it.”
Talon nodded. That seemed almost too obvious to be helpful. “Could you explain further?” she prompted.
“The most familiar example,” Ross answered, “is probably the idea of throwing oneself on the mercy of the court. By admitting to the offense one can beg for mercy, which may or may not come. But mercy is less likely to be given to someone who insists they didn’t commit the crime. It really revolves around power dynamics and the person’s perception of their personal power in the system. Most individuals are pretty powerless when faced with the might of the police and the rest of the criminal justice system, which is probably why they went to so much trouble to avoid detection in the first place. So, once caught, it’s actually a very rational decision to seek favor from the power structure in the hopes of a less severe penalty.”
Talon took a moment before asking her next question. Up until now, it had been general theory. She was about to apply it to Luke’s specific case, but she needed to make sure the jury understood the full implication of what Ross was saying.
“So, to be clear,” Talon went ahead and led her witness a bit, “you’re saying that when a person makes a decision about whether to make an incriminating statement to law enforcement, they’re not doing it to help the police, or unburden their souls, or anything like that. They’re doing it because they’ve made a calculation that, of whatever limited choices they perceive to be available to them, providing an incriminating statement is the one they believe will have the greatest benefit to them. Do I have that right?”
Talon Winter Legal Thrillers Box Set Page 63
