Conclusive Evidence

by Al Macy

  Jen put her finger on my words and nodded at Carly.

  Carly never liked being ganged up on. She crossed her arms, sat back, and fluttered her lips, not understanding how loud it was. Also not understanding that it could be interpreted as frustration that she’d been “found out.” I clenched my jaw.

  I stood, said, “I have no questions for this witness,” and sat.

  I was beginning to hope that the rumors Jen had heard about a video were unfounded. That hope was dashed when the plasma screens on both sides of the courtroom flickered on.

  Finn stood with the flare of a magician about to reveal her ultimate trick. “May it please the Court, I will now play a video recording that is germane to this case. In the interest of saving time, I will not present the foundation for this evidence, based on your comments earlier. A Ms. Suzy Pickerel recently contacted the police department. She had seen a sign-language conversation between a woman she recognized as the defendant and someone else. This took place in the Starbucks inside the Target store on Fourth Street. Pickerel was learning ASL and knew enough to understand what was being said. When she heard about Mr. Romero’s death, she reported the conversation to the police, and we obtained the security camera footage from the coffee shop. Thus, we were able to view the conversation for ourselves.”

  Jen was up in a flash. “Your Honor, surely the prosecution knows that eavesdropping is a crime in California.”

  “Only when it’s recorded, Your Honor,” Finn said.

  Jen pointed at the video screens, which held a static image of the RPPD logo. “As it was in this case.”

  “But not by Ms. Pickerel. If she’d recorded the conversation, we’d agree that it was both illegal and inadmissible. That’s not what we have here. The footage was recorded by an uninterested party in a public place.”

  I stood. “Your Honor, this is a complete surprise to us. May I have a few minutes to confer with my client?”

  “Go ahead,” she replied.

  I scrawled, Do you know what this is about? on my pad.

  She wrote, Maybe. I talked with Bridget. Mad at Angelo.

  What did you say?

  Don’t remember.

  Aargh. I couldn’t show my anger, since I felt everyone’s eyes on me. Jen and I whispered together for a bit. I counted to ten, then said, “Thank you for that, Your Honor. We are ready now and object to this testimony being brought in.”

  Judge Stevens turned her attention to the prosecutor. “Do you have any relevant case law, Ms. Finn?”

  “I do. In Washington State, a man called his cell phone from his landline, attempting to find it. The cell phone was somewhere in the room. He didn’t locate it but inadvertently left the line open, and the phone’s voicemail was activated. Thus, it recorded the altercation with his wife in which he beat her extensively and shouted, ‘I am going to kill you.’”

  Jen said, “Your Honor—”

  Stevens held up her hand like a traffic cop, her eyes on Finn. “Anything else?”

  “Yes. In Wyoming, through a series of mishaps, a woman’s Alexa device thought it heard the word, ‘Alexa.’ It then recorded the woman’s conversation. When it thought the woman said, ‘Send message,’ the device asked, ‘To whom?’ It thought it heard the name of one of the woman’s contacts, thought the woman confirmed the send, and sent an MP3 of the conversation. Improbable as it may seem, that really happened, and the recording was used as evidence that the woman had received and used insider trading information.”

  Jen was still standing. “Your Honor, California is much more stringent than Wyoming when it comes to privacy laws. I’m sure we can show that this recording is inadmissible.”

  Judge Stevens closed her eyes, her fingers on her lips, and her head rocking forward and back. Finally, she returned from her fugue. “I’m going to allow it for the preliminary hearing.”

  I stood and took a breath, wanting to ensure that I didn’t sound whiny. “Your Honor, can we at least clear the courtroom? This could taint the jury pool.”

  “Do you even know what this conversation is about, counselor?”

  “I do not. This is the first I’m hearing about it. All I know is that it may be a private conversation my client had with her best friend.”

  “In a public place,” Finn said, coming close to addressing me rather than the judge.

  Jen kept her voice calm. “People have private conversations in public places all the time with the objectively reasonable expectation that electronic devices will not be used to record them. The intent of California’s privacy law matches this situation clearly. Security cameras don’t have microphones, but because of the special circumstances in this situation they were able to record the conversation that our client had.”

  “We will view the video in my chambers.” Stevens rapped her gavel.

  Back we went to the judge’s chambers—Stevens, Jen, Finn, and me. The room was surprisingly homey, filled with decades of mementos and photographs. It also had the old-person smell that reminded me of a nursing home.

  Finn slid the DVD into the judge’s player. “This is a conversation between Ms. Romero and a woman we’ve identified as Ms. Bridget Dundon.”

  Bridget had been Carly’s best friend for as long as I could remember. She lost her hearing in infancy due to an illness.

  Finn continued, “We had our translator add subtitles to the video. This is of course her interpretation. As you’ll see, the camera was side on to the—”

  “Let’s watch it now, Ms. Finn,” Stevens said.

  The video, in color, came up in a freeze-frame, displaying the camera number, the date, and the time at the bottom left. Carly and Bridget sat in a booth toward the back of the room. They had evidently begun the conversation earlier—perhaps when getting their coffee—so we missed the start.

  Finn pressed Play.

  Dundon: But what do you care? You’re separated.

  Romero: It was going on for a long time. We were mourning the death of Patricia, and he was out screwing like a coked-up rabbit. He should have been home for me. I can’t forgive him.

  Dundon: What did she say?

  Romero: She’d seen Angelo with another woman. From a distance. They were kissing in a romantic way. She thought it was me, but when she got closer, she saw it was someone else. She didn’t want to break my heart. She saw them again after we’d separated. She decided she should tell me.

  Dundon: But you shouldn’t have cared.

  Romero: It’s the principle of the thing. I’m going to kill him … I’m going to push him off a fucking cliff.

  When she said, “I’m going to kill him,” I gave a little laugh. Is that all they’ve got? People say things like that all the time without meaning it. Without breaking a sweat I could get the jury to understand that it was just a figure of speech. But when she said, “I’m going to push him off a fucking cliff,” my heart felt as if it had been flash frozen.

  I saw two possibilities. The first was plain bad luck. He just happened to die in a way that matched her prophecy. But what a monumental coincidence. When it came to a jury, would it be a fluke that was beyond belief? The second possibility was that Carly did it. If that recording could shake my confidence in her, a perfect stranger would see it as a smoking gun. The only way it could have been worse would be if she’d said, “I’m going to push him off Tepona Point on December third at ten thirteen a.m.”

  I’ve heard it many times before: Oh, so-and-so could never kill someone. It’s just not in him. But I’d learned that anyone can commit murder under the right circumstances. Worse, Carly never struck me as someone who wouldn’t hurt a fly. She was tough and strong, and if she believed something was right, she’d do it. The only other person in our family who was like that was Toby, but to a lesser degree.

  Jen and I restated our objection on the basis of privacy laws, and the judge invited me to submit a motion to suppress it. Stevens’s body language spoke loud and clear: She would rule in my favor.

  We reco
nvened in court. Judge Stevens ruled that Carly would be held to answer. There would be a trial. We scheduled jury selection for April 5.

  * * *

  When Nicole was a teenager, before Raquel died, she had a poster in her room with a photo of two screaming parents. The overlying text read, “Adolescence: a time when parents are irrational.” Just as teenagers see their parents as the ones acting differently, a depressed person may not recognize that his own feelings are altering his perception of others. Of reality. For example, when I was depressed, I was convinced it was the kids who started fights with me, or who were intentionally antagonizing me. I remember yelling at Toby because he had trouble operating our new DVR even though I also found the interface confusing. It wasn’t until my return to sanity that the true dynamic revealed itself.

  That understanding should have made me avoid Crawford after the depressing ruling. I wasn’t in my right mind.

  The hallway on the second floor of the courthouse is a disheartening place no matter what mood you’re in. The tile floor reflected the harsh lighting and echoed the hopeless conversations of the accused. A row of stained plywood benches extended down the center of the hall. Despite the signs prohibiting it, Crawford sat on the back of a bench, his feet where his butt belonged. Like a vulture waiting for dead meat, he focused his eyes on me as I exited the courtroom. I resolved to ignore him, but it wasn’t to be.

  He imitated the dun dun duuun musical phrase that often accompanied a dramatic turn of events in 1940s movies, then said, “Judgment day is coming.”

  I stopped and tried to count to ten, but I only got to three. “I agree.”

  “You agree?”

  “Yeah. Judgment day is coming for you. This case never would have come this far if not for your personal vendetta against my sister. Even with one arm tied behind my back I’ll be able to show that—”

  Someone grabbed my elbow, almost pulling my arm from its socket.

  It was Jen. My partner was small but strong. She dragged me down the hall toward the stairwell. “You know better than that, boss.”

  I snapped at her. “What? I can’t talk with the detective on the case?”

  We turned into the stairwell, and she pushed me against the wall. “You taught me: You set your own schedule for discussions. You think, you plan, you prepare, and you sure as hell don’t let someone goad you into saying something stupid.” She was right.

  I took a breath then laughed.

  She narrowed her eyes. “What?”

  “When you pushed me against the wall, I thought maybe you were going to kiss me again.” We both looked up, as if someone might have taped a sprig of mistletoe onto the flaking cement of the ceiling.

  “In your dreams.” She took my arm, and we started down the marijuana-scented stairs.

  “So, what do you think?”

  “I think we have our work cut out for us.”

  We came out on the ground floor and pushed through the exit doors. I kept my voice low. “You know what I mean. Do you think Carly did it?”

  “What do we always tell our clients?”

  I said it with a singsong in my voice. “Doesn’t matter what I think, it’s what the jury thinks. But we both know that’s just a bullshit way of deflecting the question. It distracts the client by making him picture the jury giving a verdict. That makes him forget that it would actually help if his lawyer believed him to be innocent. It doesn’t give him a chance to think, If my own lawyer doesn’t believe me, what chance do I have with a jury?”

  “You’re losing your objectivity here, boss. I’m not sure you can function well as a lawyer if you’re acting like a loving brother. Emotion isn’t your friend here.”

  “That’s why I have you.”

  “Damn right.”

  We reached my car. Before I unlocked it, I looked over the roof at my partner. “Really, Jen, do you think my sister could have tossed her husband into the ocean?”

  “Physically?”

  “Emotionally.”

  She gave me her patented neutral look. “Doesn’t matter what I think.” Did she practice that in the mirror?

  Chapter Nine

  Carly leaned back on my office couch, and I perched on the edge of an overstuffed leather chair from the early 1900s. She and I were alone in the office. As always, I had a fire going. I found the crackling soothing, and I hoped the heat could warm the cold heart of my twin sister. The shock that she would soon be on trial for murder was only a few hours old.

  Despite the grim circumstances, my heart had been warmed by the rekindling of my relationship with her. Should I feel guilty that I’m grateful for the events that brought us back together? A chance encounter in the checkout lane of the grocery store might have been better than a murder indictment, but fate works in mysterious ways.

  “It’s too early to worry, sis.”

  “You’ll let me know when it’s time?” Her reply was half humor, half admonishment. Carly wasn’t a big fan of platitudes.

  I took a moment to plan our conversation. The crackling fire did its magic but also triggered my frustration over Carly’s disability. She was adamant that she was happy being deaf. In her view, deaf people aren’t disabled, they just have a different way of communicating—a different language! Very true as far as language was concerned, but there was a lot more to hearing. Even sitting there in my office, the tapestry of sounds added a richness to my life: the murmurs from Jen’s office as she consulted with a new client, the occasional tone of the foghorn in the channel, the scratching noises that told me the building was once again infested with mice, even the annoying bass from the sound system of a passing car. When I was a kid, I’d foolishly tried to prove to Carly that she didn’t know what she was missing.

  I’ve always had a wicked ringing in my ears—something called “tinnitus”—and I sometimes wished it would go away, just for a few minutes. But that yearning was stupid. If I could experience a few minutes of blessed relief, the tinnitus would bother me even more for the rest of my life. In the same way, why make Carly appreciate something she could never have? Ignorance is bliss. ’Tis folly to be wise.

  Anyone could be happy, even those with a more severe disability than deafness. Was Carly happy?

  She kicked me in the shin.

  “Ow!”

  “Did you go to Bermuda in your mind?”

  We both laughed. That was an expression we used to use when referring to daydreaming. Some things are funnier when expressed in sign, and Carly has impeccable timing. Maybe she was happy.

  “Are you happy, Carly?”

  She replied right away. “Happier than you.”

  Whoa! I was recovering, but maybe she had a point. Of course, it was her daughter who had died, but I’d lost a wife and a niece. No, that wasn’t how happiness worked. It didn’t have a scorecard.

  On to business. “First, Carly, you are going to have to control yourself in court.”

  She cocked her head, looking like a puzzled puppy. “What the hell do you mean?”

  I blew out my breath, causing my lips to flutter. I pointed to them and exaggerated the effect so much that it sounded like a horse to me.

  She sat there.

  “When I didn’t cross-examine the woman who talked about your browser history and told you to trust me, that’s what you did. It made a loud noise that everyone in the courtroom heard. I understand you were expressing your frustration that I wasn’t doing what you wanted me to, but that’s not how it would have been interpreted by others.”

  “Why didn’t you tell them why I did those searches?”

  “We’ll come back to that. I want to explain how it might have been construed by others. Like this: The witness says, ‘She searched for how to murder someone,’ and you respond by saying, ‘Oh, crap. They caught me.’”

  “Oh. Who would think that?”

  “Anyone,” I said. “But more importantly, a juror might think that. It’s the way people are. One little thing can tip them over into having a p
articular point of view, and it can be hard to switch them back. Maybe that one juror would hold sway with others in the deliberation room: ‘Hey, did everyone notice how she reacted when they uncovered her search history?’”

  “Okay, got it.”

  “I want you to be a statue out there. Don’t make eye contact; look down at the pad in front of you.”

  “Okay, okay. But why didn’t you tell them why I searched for those things?”

  “It was a judgment call based on years of experience.”

  She fluttered her lips—joking?

  “By then I was pretty sure we’d be going to trial. If so, not tipping my hand gives me a secret weapon. We know something they don’t.”

  “But they will figure it out.”

  “Maybe, maybe not. Let’s imagine for a second that they build their whole case around your searches. We can go in there and unravel all their work. But if they know ahead of time—”

  “Okay, okay. I got it. No outbursts. Trust you.”

  “I couldn’t have said it better.”

  She got up and went to the coffee maker, refilled her cup. When she came back, I pointed to the cup. “Aren’t you going to have trouble sleeping?”

  She put it on the side table. “You’re the one with insomnia.”

  “What? How did you know about that? We weren’t talking back then.”

  She shrugged. “I keep track of my baby brother.”

  My being born five minutes after her made me her baby brother. It was a running joke for us back when we were inseparable.

  “That’s nice to know, actually.” I used a sign that wasn’t part of ASL. Most people are aware that some twins develop their own private language. Carly and I had done the same, creating a sign language that only we understood. We’d had a sign that meant “nice to know.”

  She laughed. “I’d almost forgotten!”

  I was reluctant to destroy the nostalgia and feelings that were building, but we had business to conduct. I said, “I’m very angry that you didn’t tell me about that conversation with Bridget!” Carly hadn’t seen the video, but I’d shown her the transcript.