Conclusive Evidence

by Al Macy

  “Wait. Doesn’t the trial start today? Are you going to make it?”

  I sighed. “I don’t know. It’s a mess.”

  “You okay?”

  “Yeah, I’m fine. Considering.”

  “Okay. You take him to the emergency room at St. Joe’s. I’ll call them to tell them you’ll be there at … uh … around eight?”

  “Yeah, something like that.”

  “Okay,” she said. “I’ll give Aunt Carly some more time to sleep, then I’ll text her and get her over to the hospital.”

  “I’m not sure that she … with the trial and all.”

  “No. She can handle it. You should know that. Give me an update when you’ve got Toby. I’ll call Jen at eight and give her a heads-up.”

  Was that a tear tickling my cheek? I wiped it away. “Thanks, sweetheart.”

  “Dad, you don’t sound like yourself.”

  “Well, duh. I’m driving on a windy highway in drizzle at three thirty in the morning. I have a trial in—no, I’m fine, sweetheart.”

  “Call me when you have Toby.”

  “Will do.”

  * * *

  Weaverville was deserted when I arrived. I parked and found the night bell by the door to the town hall. Police Chief Curtis himself answered, shaking my hand. He actually did have an Andy of Mayberry vibe.

  Toby was released with a minimum of paperwork. Thank goodness he didn’t have his episode in San Francisco. Of course, in that case he’d probably already be receiving excellent psychiatric care at the UCSF hospital.

  He was still talking a mile a minute as he put on his seat belt. I made a U-turn, and we were headed back to Redwood Point.

  “You’re just leaving Weaverville now?” Nicole asked when I called her.

  “Hey, I’ve been driving as fast as I can!”

  “No, Dad, I’m just estimating when you’ll get to St. Joe’s. I’m not criticizing. I’m going to tell them you’ll arrive at eight forty-five.”

  “Thanks, sweetheart. Sorry I snapped at you.”

  I hung up, and Toby had a rare moment of silence. I looked over at him.

  “You’re depressed again, Dad. Are you taking your pills?”

  “No, I’ve been taking them. I just haven’t gotten enough sleep.” Thanks to you, I didn’t add. “Carly’s trial starts today, and I’ve got to, got to be in court at nine a.m.”

  I hadn’t taken my antidepressant/sleep aid. If I had, I’d probably be in a ditch somewhere. But it didn’t work the way Toby thought. That is, it changed my brain chemistry over the course of weeks; it wasn’t an instant happy pill.

  “They’re not going to convict Aunt Carly, are they? I know she didn’t do it. Hey, you want to rehearse?” Toby asked. “If you want to rehearse your opening statement, I’ll try to shut the hell up for a while and listen.”

  Couldn’t hurt. I launched into it as I had fifteen times over the last few days. Somehow it seemed weaker, almost hopeless.

  “That was great, Dad.” My son, the legal analyst. “You’ll kill ’em dead. They won’t convict her.”

  We pulled over to a roadside espresso stand, and I ordered a double shot macchiato for me and a mint tea for Toby. Giving him caffeine would be like administering cocaine to a hummingbird.

  Back on the road, I asked, “Do you want to talk about what happened?”

  “Later. I want to hear more about the trial.”

  I described my narrative of what I thought happened and went through the list of witnesses in alphabetical order. Jen wasn’t the only one with a good memory.

  “That’s a lot of witnesses.”

  “Well, we’re not going to call all of them. We have to supply the prosecution with the names of everyone we plan to call to the stand. Part of what’s called ‘discovery.’ It’s a common trick to put on a bunch of extra names, we call them ‘chaff witnesses,’ to hide the important ones.”

  “Sounds a little underhanded.”

  I sighed. “Yeah, it is, but everyone does it.” Louella had checked out all the witnesses, but I hadn’t received her report yet. That wasn’t like her. Also, she’d given us a list of witnesses she thought we should call, but without the report, some were a mystery. For example, one was a tour operator from Arizona. What was that about?

  “You mentioned Bridget Dundon. You know she was having an affair with Uncle Angelo, right?”

  I almost drove off the road, the tires vibrating like a quiz-show buzzer on the rumble strip. “What?”

  “Yeah. I walked in on them when they were doing it at Uncle Angelo’s. I always thought men had affairs with women who are really different from their wives. I guess that’s not always true. I don’t like Bridget. At all. And I hate Uncle Angelo. I hate him! He got what he deserved.” There was an intensity in his voice I’d never heard before. He gave me a quick glance.

  “You saw this when Carly and Angelo were still together?”

  He shrugged. “I don’t remember. I backed out, you know, and they never knew I saw them.”

  Toby rambled on about other things for a few miles and talked about the Weaverville events in a way that didn’t really make sense.

  “Hey, buddy,” I said. “I’d like to get you into the hospital so they can help us figure out what’s going on with you.” I held my breath.

  I thought he wasn’t going to reply, then he said, “Yeah. Okay. That’s probably a good idea.”

  We pulled up to the emergency entrance at 9:00 precisely, same time the trial was supposed to begin. Carly stood outside the doors. She waved then stepped in through the doors, signed to someone, and came out again. She opened Toby’s door and gave him a hug.

  “We’re all set.” She handed me a clipboard with some forms to sign. I did so.

  A nurse came out with a wheelchair. I blinked. It was none other than Bridget Dundon. She took the clipboard and my son and waved us off.

  We burst through the courtroom doors at 9:20 and directly into the gale-force winds coming from Judge Stormy Stevens.

  “So nice you could join us,” she said.

  “We had a family emergency, Your Honor.”

  “That is what Ms. Shek told us. If I find out this is one of your tricks, Mr. Goodlove, you’ll find yourself in jail.”

  “I understand, Your Honor. It won’t happen again.” I was glad the jury wasn’t in the box to hear that exchange.

  I sat and whispered to Jen, “Louella?”

  She shook her head. That was another emergency. Louella had told me her report was coming, but that was the last we heard from her. She’d implied the report included information that might help us stop the prosecution in its tracks. We need that report!

  Chapter Fifteen

  It was time for opening statements. This was our only opportunity to make a good first impression on the jury. The visitors’ gallery was full. Someone nearby was wearing too much perfume.

  Finn sat at the prosecution table with Detective Crawford behind her, and the two of them had a whispered conference. Crawford sent a subtle sneer our way; I wasn’t sure he was even aware of it.

  Finn stood and stepped to the lectern. Did she give me a tiny wink? She cleared her throat. “Circumstantial evidence, ladies and gentlemen of the jury, has gotten a bad rap on TV.”

  The prosecutor was especially fetching in a navy blue top that contrasted perfectly with her hair. The neckline plunged just enough to show some cleavage—not quite over the line. The jurors were noticeably captivated, both men and women.

  “But in fact,” she continued, “the law tells us that circumstantial evidence and direct evidence are equally valid, and furthermore, that a jury can convict a defendant solely on the basis of circumstantial evidence. Let me make sure you understand these two terms.”

  I watched the jury for reactions and saw a little frown and smirk on Juror 2. He didn’t like being lectured to as if he were a kid. I made a note.

  Finn continued, “Let’s say you look out the window, and you see that it’s raining.
That’s direct evidence. But let’s say you’re in a courtroom such as this one that has no windows, and you see someone come in with a dripping umbrella. That’s circumstantial evidence. You didn’t see the rain, but you could infer that it was raining. Maybe your friend said, ‘Gee, it’s really raining hard out there.’ More circumstantial but reliable evidence that it was raining.

  “Ms. Carly Romero,” Finn pointed, “pushed her husband off a high cliff onto the rocks below. No one saw her do it, but we will present conclusive circumstantial evidence that will convince you, beyond any reasonable doubt, that she murdered her husband. We have a witness who saw Ms. Romero leaving Tepona Point, the site of the murder, along a narrow path to the parking lot. A path along a ridge so narrow, that Ms. Romero could not have come from anywhere other than the site of the murder. She couldn’t have just happened to stroll by from somewhere else.

  “Our first witness, a surfer who was out on the ocean, saw Mr. Romero fall from the cliff in a manner that tells us that he was pushed. He didn’t jump. This was no suicide, as the defense might want you to believe.”

  Finn walked to the prosecution table and drank from a sports bottle, giving her words a chance to sink in. “But that’s not all. We have a close friend of the defendant’s who will testify that Carly was outraged at her husband because she had just found out he had been having a long-term affair.”

  A murmur rolled through the audience, and a few jurors raised their eyebrows.

  “That affair, she learned, had been going on when she was pregnant with her daughter. It continued while she was nursing the child and raising her together with her husband, Mr. Romero. It even continued, she’d learned, after that daughter of hers died at the age of only eighteen months! In her understandable rage at her husband, our witness will testify that the defendant said these chilling words.” Finn picked up her pad as if she wanted to get them just right. “Please excuse the language, but Carly Romero said, using sign language, ‘I’m going to push him off a fucking cliff!’”

  Without another word, Finn went to the prosecution table and sat. She kept her eyes down.

  I had to admit it, she was good. Her outrage was all an act, of course, but she played it perfectly. As the old joke goes: The most important thing you need as a trial lawyer is sincerity. Once you can fake that, you’ve got it made.

  Stevens looked my way. “Mr. Goodlove.”

  “May it please the Court, Your Honor, I’d like to ask for the briefest of recesses.”

  Her eyebrows dropped from their usual unusually high position. “You certainly may not.”

  “No more than five minutes, Your Honor.”

  Probably assuming I was nervous and needed a bathroom break, she assented. “No more than five minutes.”

  “Thank you, Your Honor.” I was already rushing down the aisle, ignoring Jen’s and Carly’s puzzled frowns. Let everyone think I had a weak bladder.

  I ran through the hall, expecting to hear a bailiff’s shout to stop. I didn’t think I could make it to the car and back in five minutes, but I’d deal with Stormy Stevens’s wrath later. My errand was worth it.

  But then I saw the very thing I was intending to get from my trunk. It was broken but would meet my needs. I snatched it up and charged into the men’s room. All the sinks were occupied, so I dipped my prop into the water of a toilet. I bent over and reached in and splashed water onto my hair. What I wouldn’t do to gain my sister’s freedom.

  Back down the hall, I raised the umbrella and pushed through the courtroom doors backwards. I shook it, splashing water on some of the spectators, hoping I wouldn’t read about an outbreak of E. Coli on the news. Every eye in the courtroom was on me.

  Judge Stevens boomed, “Mr. Goodlove! What in the world is going on?”

  “Well, Your Honor, I needed to get a little fresh air. As you know, it’s a beautiful day and the sun is shining. But wouldn’t you know it? Just when I was taking a deep breath, the sprinklers turned on. Lucky for me, I found this umbrella.” I shook some more water onto the industrial carpet.

  Stevens slammed her gavel. “I will not tolerate these kinds of tricks. My courtroom is not a circus. I am fining you one thousand dollars, payable after we adjourn for the day. There will be no more demonstrations like this … this … stunt that you just put on.”

  “I’m sorry, Your Honor.”

  “Please proceed with your opening statement.”

  I’d expected her rage and the sanction, but every juror got the message. They might even have enjoyed the little bit of excitement. I had them on my side.

  Jen dried off my hair with some tissues. I decided to make no apologies.

  “Ladies and gentlemen, circumstantial evidence can lead you astray. The prosecutor stated that by seeing a wet umbrella you could infer that it was raining. But it is not raining, and yet my umbrella is wet. A problem with circumstantial evidence is that it can lead you to an incorrect conclusion. Maybe the umbrella was wet because a sprinkler came on, or maybe someone dropped it in the … bathtub.” I considered saying “toilet” but that would have been a distraction.

  I took a breath. “Ms. Finn says that an eyewitness puts my sister—yes, the defendant is my very own dear sister—at the scene of the crime, but we’ll show that her testimony has another, more plausible explanation, just as the wet umbrella had an explanation other than rain. We’ll show that when Mr. Romero fell off the cliff, there was no way to know whether he jumped intentionally. Or tripped. Maybe he was taking a selfie too close to the edge. We have no direct evidence to tell us what happened.”

  I stopped and looked across the faces of the jurors. “Let me tell you a story. Many years ago I was married to a lovely woman. She was killed in a car accident, may she rest in peace. Raquel was Mexican and had a Latin temper. I had a temper, too, back then. One day, we were in the middle of a fight, I don’t even remember what it was about. At one point, she screamed in frustration, like this—Aaah!—and ran out of the house.” My scream was a good one and made everyone jump, especially Judge Stevens. “Raquel ran across the yard, jumped into our new car, and squealed out of the driveway. Unfortunately, in the process, she backed over the mailbox and sideswiped our big oak tree before peeling off down the road.

  “You know what I did then? I remember it as if it were yesterday. Standing there in the front yard, I raised up my fists, like this, and you know what I said? I said, ‘I’m going to strangle her!’”

  I let that phrase hang in the air then said, “Of course I didn’t mean it. I’m sure most of you have said something like that. ‘I’m going to kill him.’ ‘I’m going to knock his fool head off.’ I didn’t mean it, and neither did you. When Raquel came back, I didn’t strangle her, of course, even though I was still angry about the car. And the mailbox. We made up, and … uh … had a very nice evening together.” Too much information?

  Leave it there? No.

  “During our case, we’ll show you that the prosecutor, as she admits, has zero direct evidence that Angelo was murdered at all, let alone that my sister, Carly Romero, killed him. They’ll present a meager few pieces of circumstantial evidence, but by applying a little common sense, you’ll come to the conclusion that my sister had nothing to do with Mr. Romero’s tragic death.”

  * * *

  We could guess at some of Finn’s strategy from her witness list, but without Louella’s report, there were some scary holes. Aargh. I was sure she’d start with the surfer—show that Angelo had gone off the cliff—followed by the crabber to show that he’d died, and the eyewitness that put Carly at the scene.

  Finn stood. “Your Honor, the People call Mr. Zeke Kapkowski to the stand.”

  The surfer had cleaned up well. His beard was gone, and he wore a tweed blazer over a white turtleneck. He went through the same story he’d given during the preliminary hearing: A sound had made him look toward Tepona Point. He saw a man tumble off the cliff and into the ocean.

  An airhorn had been found near the edge of the dr
op-off, and the police had collected it as evidence. Was that relevant? Could that be the noise the surfer had heard?

  Finn had brought out the surfer’s impression that the man had been pushed off the cliff. In fact, as often happens, the man’s conclusions had solidified from It kinda looked like he was pushed to He was definitely pushed. That’s the way the brain works. Perhaps his subconscious was eager to please the sexy prosecutor.

  Finn sat, and it was my turn. I stood and walked to the lectern.

  “Mr. Kapkowski, did Mr. Romero yell out, ‘Aah! Someone pushed me off the cliff!’ when he fell?” Leading questions are allowed during cross, and I use them as often as possible. They allow me to keep some control over the answers.

  Finn stood. “Objection.”

  The judge and I both looked at her. Stevens asked, “On what grounds?”

  Finn frowned. “Uh … withdrawn.” She sat back down.

  Kapkowski turned to the judge.

  She nodded. “You may answer.”

  “No. That’s a stupid question,” he said. “Of course I couldn’t hear him. He was about three hundred meters away, and the swell was humongous. Loud.”

  “Mr. Kapkowski, please just answer Mr. Goodlove’s questions.”

  “Yes, Your Honor. Sorry. No, I couldn’t hear him.”

  “Did you see Mr. Romero shake his fist at anyone, like, ‘I’m gonna get you for this’?”

  A few spectators and two jurors laughed. Jurors are usually pretty bored. They’d rather be somewhere else, and their minds can wander. Putting on a little show helps them pay attention.

  “No, he was too far away for me to see anything like that.”

  “And yet from that distance you could tell someone pushed him.”

  “Yes, it was the way that—”

  “Thank you. Did you see anyone push him?”

  “No. I only saw him fall, but—”

  “Did you see my sister, Carly, push him?”

  “No. I was out in the lineup, so I had to keep my eye on incoming swells.”

  “The lineup? Can you tell the jury what that refers to?”

  He looked toward the jury box. “It’s the place where the waves break. It’s where the surfers line up to catch them.”