“I want to look further at that expression you yourself used: unreliable witness. The negative opinion of you contained in the ruling didn’t derive only from this criminal record of yours, which we’ve now clarified. There were also inconsistencies in your account of that afternoon, are you aware of that?”
“Yes, of course.”
“Then let’s examine these inconsistencies. You said you went to see the elderly lady you used to keep company for a few hours every day. Is that correct?”
“Yes, it’s correct.”
“Do you still go to see this particular lady?”
“No, unfortunately she passed away.”
“Until when did you go there?”
“Until about a year ago, which is when she died.”
“Can you tell us the length of time you spent that afternoon, the afternoon of the murder, in this lady’s apartment?”
“I was there from three o’clock to seven o’clock.”
“How can you say this with such certainty and precision at this distance in time?”
“I’d like to clarify the misunderstanding —”
“I’m sorry, don’t bother to clarify anything. Just answer my questions. How can you be so sure about the time after all these years?”
“Because in the days immediately after the murder, when it turned out that Iacopo was a suspect, I thought carefully about what I’d done and about the time when I’d seen my son come home. I assumed I’d be questioned by the police and I hoped I’d be able to provide him with an alibi.”
“Is that what happened?”
“No, I was never called by the police.”
“But when your son was arrested, didn’t you think of going to the police or the prosecutor and making a statement that would clear him?”
“Yes, I talked about it with his previous defence counsel and he told me it was better to keep this option for the trial. He said they’d never believe me while the investigation was still ongoing, they’d think I was lying, wholly or partly, in order to provide Iacopo with an alibi.”
“So the first time you made any statement about this was in court at the first trial?”
“Yes.”
“But, as you told us a few moments ago, you’d already gone over in your mind your whereabouts on the afternoon of the murder in the days immediately following. Is that correct?”
“Yes, it is.”
“Why didn’t you say that when you testified at the trial?”
“Because I got confused. The prosecutor asked me how I could be so sure of the time and, for some absurd reason, I don’t really know why, I said I was sure because that was the schedule I had with that lady at the time. Which was partly true, even though I was already occasionally doing different schedules. Basically, I didn’t explain it well.”
“To avoid any misunderstanding and to make sure your testimony today is completely transparent, I ask you now: have you ever discussed with anyone else the substance of this testimony, today’s testimony, I mean?”
“I discussed it with you.”
“Can you tell the court, in broad terms, what was the tenor of our conversation?”
“You showed me that my testimony at the trial was contradictory and that it was understandable that the judges had doubted it. You asked me to go over the whole story again calmly and to explain why I remembered the time so precisely. And I told you what I’ve just repeated here in court.”
“And what did I say?”
“You told me that if that was the truth, we should request that I be called again as a witness to clarify all these misunderstandings. Both about that old episode, and about the day of the murder.”
“Thank you, signora. Your Honour, I have no further questions.”
Marinelli nodded, half closing his eyes. I had the definite feeling that my examination of Lorenza had made an impression on him.
“Very well. Does the prosecution wish to cross-examine the witness?”
“Yes, Your Honour,” Gastoni said.
“Please proceed.”
“So, the accused is your son and naturally you want him to be acquitted, is that right?”
A flash of something I couldn’t interpret passed through Lorenza’s eyes. “Naturally,” she said after a few seconds, as if she’d had to think carefully about her answer.
“You would be prepared to do anything to save your son, I imagine.”
I stood up. “Objection, Your Honour. That’s a speculative question, asking the witness for a hypothetical opinion, and it also includes an implicit threat. It is therefore forbidden for two reasons: because it violates the prohibition on asking opinions of the witnesses and because at root it impugns the honesty of the answers according to article 499 paragraph 2 of the code of practice.”
“Assistant Prosecutor, ask questions about facts, not speculation,” said Marinelli.
“You said you spoke with defence counsel and only after that conversation did you decide to change your version. Have I understood that correctly?”
“No, you haven’t. I said that talking with counsel, and even before reading the judges’ ruling and the transcript of my testimony, I realized I’d said some things that were unclear and that lent themselves to being misunderstood. That’s why counsel and I decided that I should testify again.”
“And you prepared the substance of your testimony together.”
I thought of standing up and objecting again. It would have been a correct objection, because the question implied that we had sat round the table and prepared the substance of the testimony, twisting it to suit us – in other words, it implied that I had done something improper. Then I realized that the objection would be a kind of pre-emptive self-defence, a demonstration that I was oversensitive and vaguely guilty. So I decided not to react – hoping Lorenza would find an effective answer.
“I don’t think it’s right, putting it like that. We didn’t prepare the substance of my testimony. I calmly told counsel why I remembered the time so clearly, he asked me if I was sure, I said yes and he said that then it would be necessary for him to request that I be called again to testify.”
Gastoni made a gesture of annoyance. “The court will evaluate if what you say is the truth or if it’s an attempt to fix a testimony that was rightly considered unreliable.”
Now an objection was unavoidable.
“Your Honour, could we ask the assistant prosecutor not to argue with the witness and not to make observations at this point that she’ll be able to develop, if she so wants, in her closing statement?”
Marinelli sighed briefly. “Assistant Prosecutor, do you have any further questions? Questions, not observations.”
“I have no further questions,” she said ungraciously.
21
We had decided that the last two witnesses would be examined by Consuelo. So I made room for her in the central part of the bench and sat down at the side.
Judge Marinelli asked the bailiff to bring in Sabino Arcidiacono, the young man Cardace had had coffee with near Gaglione’s apartment.
He looked haggard, almost crestfallen, with something wary in the way he moved. He walked through the courtroom to the witness stand with his eyes down, as if finding himself here embarrassed him, as if it were something a little shameful.
Looking at him, I remembered an episode I had been told by a magistrate friend of mine about his time in Calabria. During an interrogation he had asked a guy if he had a criminal record, and the man had replied that he guessed he had a criminal record now, because this was the first time he had ever given testimony.
Marinelli informed Arcidiacono that he had to read the oath. He did so, slowly, reading some words syllable by syllable, but without getting anything wrong, which often happens.
Maybe it was because I didn’t have to examine him and was watching the scene from a different perspective, but hearing him read in that way, awkwardly but full of dignity, moved me deeply for a reason I couldn’t understand.
Consuelo stood up, let a few seconds go by, then addressed the witness.
“Good morning, Signor Arcidiacono, I’m one of the two lawyers representing Iacopo Cardace. I’m going to ask you some questions. Please answer only if everything is clear to you. If you have any doubts don’t hesitate to say so. All right?”
The man nodded half-heartedly.
“Signor Arcidiacono, let me take the opportunity to make one thing clear. Everything here is recorded, but only in audio form. If you just nod without saying anything, nothing will appear in the transcript, and it might be difficult to understand exactly what you meant. So I ask you to always answer out loud. All right?”
“All right,” he replied, just as half-heartedly.
“Then let’s proceed. Do you have a job?”
“Yes, I’ve always worked.”
“What do you do?”
“I’m a car mechanic.”
“Do you have a garage of your own?”
“No, I work for someone.”
“Do you know why you were called here today to testify?”
He nodded again, then remembered. “Yes, I do.”
“Do you know the man sitting opposite you, behind the bars?”
“Yes.”
“Have you known him for a long time?”
“Yes, but we’ve never really hung out together. Every now and again we have a coffee or a cigarette. I saw him at the disco a few times.”
“Do you remember his name?”
“Iacopo.”
“Do you remember his surname?”
“Cardascio, I think.”
“Cardace. Tell me, Signor Arcidiacono, have you ever used narcotics?”
Arcidiacono looked round. Once again he gave the impression he was searching for a way out.
“Don’t worry, nobody’s accusing you of anything. You can answer quite safely.”
“A joint every now and again. But I don’t do it much these days. I got married.”
“Did you ever purchase drugs – grass or anything else – from the accused? For your personal use, of course.”
“A few times.”
“How did that work? Did Cardace have a place where he sold the drugs?”
“No, no, he wasn’t a dealer. We’d meet and I’d ask him if he had anything. If he had, he’d say yes and give it to me and I’d give him the money. But we’re talking about nothing, just a few joints.”
“Of course, small quantities. Apart from pot, did he have other narcotics?”
Another hesitation. A longer one. This time Consuelo waited.
“Sometimes he had pills,” Arcidiacono said at last.
“By pills you mean Ecstasy?”
“Yes.”
“Did you ever purchase any?”
“I think so, a few times. At the disco.”
“When was the last time you met Iacopo?”
He sniffed, as if to summon up courage. “I saw him the day … the day the thing happened.”
“Are you referring to the murder of Gaglione?”
He nodded.
“You need to speak out loud, for the transcript.”
“Yes, yes, that day.”
“Can you tell us what you remember?”
“Nothing really, I was outside the cafe and he passed and we said hello.”
“Why were you there? Were you working in the area?”
“No. My boss had sent me there because I had to look at a car that had been in an accident, for an estimate.”
“Was Iacopo in a hurry? How was he walking when you met? Quickly, slowly, normally?”
“Normally.”
“It didn’t strike you that he was in a hurry?”
It would have been natural for Gastoni to object to this question. Consuelo was asking him for an opinion, and opinions, in general, are forbidden. But Gastoni said nothing and the examination continued without interruption.
The witness shook his head. “No, he was walking normally.”
“He was walking normally and you said hello. And then?”
“I asked him if he fancied a coffee and we went into the cafe.”
“In the cafe, did you sit talking?”
“Yes.”
“About what?”
“I don’t remember … this and that.”
“Is it possible you also talked about drugs?”
Arcidiacono stared at Consuelo, who returned his gaze and gave him an imperceptible nod of encouragement.
“Yes,” he said at last.
“Did Iacopo have something?”
“Yes.”
“What?”
“Pills.”
“Did he have them with him?”
“Yes.”
“Did he give them to you?”
“He asked me if I wanted to try them. They were new.”
“And what did you reply?”
“That I didn’t have any money. But he said he’d give me one, and if I liked it I could buy the others.”
“Did you accept?”
“It was for free,” he said as if apologizing.
“Of course. Had Iacopo ever given you anything for free before? Pills or anything else.”
“A few times. He wanted to sell, so first he had to get the new stuff known about. It’s normal to give away a taster.”
“I’m sorry, I’m going to go over this for a moment to see if I’ve understood correctly.”
This was a delicate moment. Recapitulative questions are only allowed if they really are recapitulative, that is, if they are used only to take stock of what has been said up until that moment. They make it easier for the judges and jury to follow and at the same time put the witness at his or her ease. A proper recapitulation sends the witness a specific message: what you’ve said was clear, we’ve understood and we ask you to continue in the same way.
Sometimes, though, the formula of the recapitulative question is used to conceal a degree of manipulation. You recapitulate up to a certain point, then slip into the recapitulation something the witness hasn’t actually said, at least not in those terms. Maybe it’s a logical or likely consequence of what was said, or maybe it’s a totally arbitrary implication. The fact remains that these questions that are recapitulative only in appearance tend to suggest an answer or even to pass off as an established fact something that the witness hasn’t actually said and maybe never would say.
In short, recapitulative questions, in theory harmless and even useful, are to be handled with caution. Many defence lawyers and many prosecutors object to them regardless, out of caution, to avoid any risk of the testimony being manipulated.
But once again Gastoni said nothing, which surprised me. Maybe the fact that the witness was talking about offences committed by the defendant – basically, he was accusing him of drug dealing – had distracted her from such procedural matters.
“So you said that you met Iacopo near the cafe; he was walking calmly and you invited him to have a coffee; you went into the cafe, you had your coffee, he told you he had something new, meaning a new kind of pill, and he offered to let you try it for free. You agreed, he took a pill from his pocket and gave it to you. Is that correct?”
“Yes.”
“Did he give it to you in the cafe or had you gone out by then?”
“He passed it to me in the cafe, under the counter.”
“Who paid for the coffee?”
“I don’t remember.”
“How long were you in the cafe?”
“I don’t know, five minutes…”
“Did Iacopo tell you he was in a hurry?”
“No.”
“Do you know who he’d got that pill from?”
“He said he’d gone to see someone who’d given it to him.”
“Do you know who that was?”
“No.”
“Do you know when he’d been to see this person?”
“He lived somewhere nearby.”
“You mean Cardace had been to see Gaglione just before y
ou met him outside the cafe?”
It was a leading question, there was no doubt about that.
“Objection, Your Honour, that’s a question that’s clearly trying to suggest the answer,” Gastoni said, barely rising but placing her hands on her bench.
“Sustained. Ask another question, Avvocato Favia.”
“What had Iacopo been doing just before you met?”
“I think he’d been to that other guy’s apartment.”
“You mean the apartment of the man who’d given him the pills?”
“Yes.”
“When you said goodbye did Iacopo tell you where he was going?”
“No.”
“Did he rush off or did he go away calmly?”
“Calmly.”
Consuelo had finished. Marinelli asked Gastoni if she wished to cross-examine.
“Yes, Your Honour.”
“Please proceed.”
“So you don’t know where Cardace went after you met him.”
“No.”
“For all you know, he might even have gone back to see the person he got the pills from.”
“Objection, Your Honour,” Consuelo said. “A conjectural question. In fact, it’s not even a question. It’s a conjecture the assistant prosecutor could make in her closing statement if she wants to.”
“Ask questions, Assistant Prosecutor,” Marinelli said.
“Have you been examined before today?”
“How do you mean?”
“Has anybody questioned you? The police, an examining magistrate?”
“No.”
“Have you ever told anybody this story?”
“A man and a woman – they said they were private investigators. And then the lawyers,” he added, turning and nodding in our direction.
“When was this?”
The Measure of Time Page 18
