Silenced Witness

by Larry A Winters

  Graham handed her the cup and sipped from her own. “No, I just know what kind of bribes work on you.”

  “Everyone has their price, I guess.” Jessie tested the heat of the coffee and then took a long drink. It was exactly what she needed. She sat back in her chair and let out a satisfied breath. “How’s the investigation going?”

  Graham leaned against the wall. She brushed a stray hair away from her face, then took a sip of coffee. “It’s going well. Novak and I re-visited some of the witnesses from the original neighborhood canvas. We found a caregiver working in the house across the street. She saw Hazenberg enter Kent Edley’s house that night at 9:15 PM.”

  “She picked him from a photo array?”

  “Not exactly.” Graham seemed to avoid eye-contact. “She saw his picture on the news, after he was arrested.”

  Jessie felt her enthusiasm deflate. “Emily—”

  “She would have picked him from an array. I’m sure of it. But the police missed her during the first canvas. It doesn’t matter. She saw him. Combine that with the convenience store video footage, and you’ve got your case.”

  Graham’s confident tone puzzled Jessie. “This woman saw him from all the way across the street? In the dark?”

  “There was light from the doorway. Jessie, she’s convincing. A jury will believe her.”

  Jessie nodded. She knew Graham had good instincts when it came to witnesses. “With the security camera footage and the glove, it might be enough.”

  The confident expression dropped from Graham’s face, and Jessie realized the detective had been putting on an act. But why? Graham had never been dishonest with her before. She was a by-the-book detective, not the kind of person to play games.

  “What is it?” Jessie said.

  Graham came away from the wall and dropped into one of Jessie’s visitor chairs. “I was hoping to convince you that you don’t need to oppose the motion to exclude the glove. There is no way we’ll get the glove admitted at trial. We both know that. If you make a big scene opposing Hazenberg’s motion, you’re only going to draw attention to Novak’s mistake and embarrass him. How does that help anyone?”

  Now Jessie understood. “Emily….”

  “You’re a great prosecutor. You have enough, even without the glove.”

  “This is a murder trial. I need everything I can get. When you become overconfident is when you lose.”

  “I get that,” Graham said. “But the glove is a lost cause.” She gestured at Jessie’s computer screen. “Am I wrong?”

  Jessie didn’t want to look at the list of decisions. “It’s a long shot, like Warren said.”

  “So just let it die quietly. Novak is about to retire. Don’t embarrass him in a hearing. He’ll dwell on it for the rest of his life. It will torment him.”

  Jessie chewed her lip. She glanced at the coffee cup on her desk and recalled Graham’s joke about bringing it to bribe her. Not so funny now.

  “I’m sorry, Emily. The glove would be incredibly valuable evidence. If there’s any chance of getting it in, I need to try.”

  Graham leaned forward. “I’m asking you as a friend, not as a cop.”

  Jessie felt her resolve weaken. She cared a lot about Emily Graham. She liked Toby Novak, too. She did not want to hurt either of them, especially if doing so wouldn’t achieve anything. But deep inside, she knew the right thing to do was to fight the Nolans’ motion. If she conceded at the pretrial hearing without a fight, and then lost the trial, she would be the one who dwelled on the case for the rest of her life.

  “It can’t be like that with us,” she said, meeting Graham’s stare. “I can’t treat you differently than any other homicide detective. We don’t want to go down that path.”

  Graham rose from her chair a little too quickly. Liquid escaped from the lid of her coffee cup and ran down the side, over her fingers. “I don’t know why I bothered asking.”

  “Emily, I’m—”

  “Don’t worry about it.”

  Before Jessie could say more, Graham was gone.

  19

  The judge assigned to the Hazenberg case, Merry Carabotta, scheduled a pretrial hearing to rule on the defendant’s motions to exclude the glove and the confession.

  “I’ll consider the spousal privilege question first.” Judge Carabotta flipped through some notes on her lectern and then scowled at the lawyers. She looked irritated and uncomfortable on her perch at the head of the courtroom, but her demeanor did not surprise Jessie. Even after prosecuting several cases in her courtroom, Jessie was not sure if she had ever seen the woman smile. The judge’s first name, Merry, was like an ironic joke.

  Jessie forced herself to meet the judge’s dour stare. Hal and Kristina Nolan, standing at the defense table across the aisle, did the same. The courtroom was otherwise empty—the judge had made sure of that, given the confidential nature of the matters under discussion.

  “Thank you, Your Honor,” Hal Nolan said. “As you know, the defense moves to suppress any evidence of the defendant’s supposed confession to his wife, on the grounds that Pennsylvania’s spousal privilege applies.”

  The judge turned her stare toward Jessie. “The Commonwealth opposes this motion?”

  Jessie straightened her back. “Yes, Your Honor.”

  “Your Honor,” Hal said, “the statute couldn’t be more definitive. Do we even need to debate this?”

  “Apparently we do,” the judge said dryly.

  “Of course, Your Honor. I didn’t mean any disrespect to the Commonwealth. I understand Ms. Black needs to oppose the defense’s motions even where her position is completely without merit.”

  “Objection,” Jessie said.

  Carabotta sighed with impatience. “Mr. Nolan, we don’t know each other that well, so I’m going to give you a warning. Do not test my patience.”

  Jessie saw Kristina Nolan flash her husband a glare that put the judge’s to shame. Jessie had to hide her smile.

  “Sorry, Your Honor,” Hal said in a meeker voice. “I’ll direct your attention to Title 42, Section 5914 of the Pennsylvania statutes. ‘In a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.’ Our client does not waive the privilege. Shall we move on?”

  “You have a counterargument, Ms. Black?”

  Jessie did, although not a particularly strong one. Now it was her turn to risk Carabotta’s wrath. She took a breath. “The reason behind the spousal privilege is a public policy to promote marital harmony. There is no harmony here. In fact, where the facts involve a spouse attempting to intimidate his wife, Pennsylvania courts have held that the privilege does not apply.” She began to list supporting decisions when Hal interrupted her.

  “There was no intimidation here, Your Honor. The communication was not a threat, which is the standard required for that exception to be applicable. You’ve seen Maxine Hazenberg’s statement?”

  The judge nodded.

  “So you know that my client’s wife claims that my client told her about something he’d allegedly done to a totally different person at an earlier time. He made no threat against his wife.”

  Jessie felt herself losing ground. “There was an implied threat, Your Honor.”

  The judge let out another sigh. Her eyelids drooped. “I’ve been married twenty-five years, Ms. Black. If the exception extended to implied threats, no communications between spouses would be covered by the privilege.”

  Hal laughed, which earned him another hostile look from his wife.

  Jessie nodded and said, “The privilege also does not apply in cases involving a crime that a spouse commits against his or her spouse. The prosecution’s theory of this case is that Mr. Hazenberg murdered Kent Edley to hurt his wife.”

  Hal looked at her and smirked. “Even assuming that the prosecution’s theory of the case was true,” he said in a mocking tone, “that would make M
axine Hazenberg the motive for the crime, not its victim. My client’s alleged crime was not against his spouse. It was against a third-party. Like I said, there is no merit to Ms. Black’s arguments.”

  Carabotta silenced him with a look. “I’ve heard enough. I’m going to agree with the defense on this one. The wife’s statements will not be introduced as evidence in this trial.”

  And with that simple statement, Jessie lost a critical piece of evidence. She tried to maintain a poker face, but it wasn’t easy.

  “The defense also moves to exclude evidence of a glove found near the crime scene, as well as evidence deriving from such glove,” Hal said, “on grounds that chain of custody was not adhered to by the police.”

  Judge Carabotta looked skeptically at the documents in front of her. “The Commonwealth is opposing this motion as well?”

  Jessie heard the sound of a door opening behind her. She glanced back and saw Toby Novak and Emily Graham admitted into the otherwise empty gallery.

  You can still stop this. Just tell the judge that the Commonwealth does not oppose the defense’s motion.

  Fleetingly, she considered doing that. After losing her first motion, the temptation to walk away with some dignity was strong. And Graham was practically pleading with her eyes. But Jessie knew she could not do that.

  “Ms. Black?” the judge prompted.

  “Yes, Your Honor. The Commonwealth does oppose the motion. First of all, any alleged gap in the chain of custody here was immaterial. And second, it’s the role of the jury to weigh the probative value of the evidence. A motion to exclude the glove prior to trial is premature. We will authenticate all of our evidence at trial, and if Mr. Nolan wishes to raise questions about chain of custody at that time, he can do so.”

  “Maybe,” Hal said, “but by then it will be too late. The jurors will have been exposed to your so-called evidence anyway, and my client will have lost his right to a fair trial. That’s why the defense moves to resolve this issue now, in advance of trial.”

  “I agree with Mr. Nolan,” the judge said. “That’s why we’re here today. As the trial judge, it’s within my discretion whether I believe the Commonwealth can lay the foundation needed—as a matter of law—to establish chain of custody.”

  Hal nodded. “Thanks, Your Honor. I’m sure you will also agree with me that it is the prosecution’s burden to show that when seizing evidence, the police labeled it in a way to distinguish it from other evidence. They didn’t bother to do that here. Detective Novak stuffed the glove into an unmarked baggie. The Commonwealth has admitted as much.”

  “It was the only baggie on his person,” Jessie said. “There was no other evidence to confuse it with. And he labeled it later.”

  “The police also have a duty to store the evidence in a secure location,” Hal said. “Detective Novak took the glove home with him. He had it in his home overnight, while he slept. How do we know that no one tampered with it? Such as my client’s wife, for example, a woman who is apparently foaming at the mouth to pin this murder on my client? Or even detective Novak himself, looking to make a big bust before his retirement at the age of sixty-five?”

  “Objection,” Jessie said. “Detective Novak’s age is not relevant.”

  “Sorry, Your Honor. I take it back. Didn’t realize the detective was sensitive about that.”

  Jessie did not dare glance behind her. She could feel the detectives seething in their chairs.

  Hal shrugged. “My point is, we don’t know, because the chain of custody was not observed.”

  “Detective Novak and the rest of the police acted in good faith throughout the investigation,” Jessie said. “Detective Novak made a minor mistake by delaying delivery of the evidence to the crime lab for a short period of time. But the glove never left his possession.”

  Hal shook his head. “Detective Novak admits that he slept that night. We can’t know for certain that the glove never left his possession.”

  “You both keep telling me what this detective did and said. He’s sitting right there.” Judge Carabotta aimed her frown at the gallery. “Let’s hear from the detective himself.”

  Jessie felt suddenly cold. “You’re Honor, is that necessary—”

  “Detective Novak, come up to the witness stand please.”

  Novak walked past Jessie on his way to the stand. She saw a slight tremble in his body and hoped it was a symptom of old age, but she knew better. Graham’s words were fresh in her mind. He’ll dwell on it for the rest of his life. It will torment him.

  From behind her, she heard Graham curse under her breath. She hoped the sound did not reach the bench and Judge Carabotta’s ears.

  “Detective Novak,” the judge said, “can you tell us with absolute certainty that you had this glove in your possession from the time you picked it up near the crime scene to the time you turned it in to the police crime lab?”

  “Yes, Your Honor,” Novak said. “It never left my person.”

  The judge did not look convinced. “The glove was in your pocket?”

  “Yes.”

  “Which pocket?”

  “I was wearing a suit. I put the glove in an evidence bag, and I put the bag into the left pocket of my suit pants.”

  “And then you got distracted because a witness appeared. Maxine Hazenberg.”

  “Yes, Your Honor. Exactly.”

  “Did you have the glove on your person when you interviewed Maxine Hazenberg?”

  “Yes, I suppose I did. In my pocket, like I said.”

  “And it seems that the agenda of Maxine Hazenberg at that time was to convince you that the defendant was guilty, correct?”

  “I wouldn’t use the word ‘agenda.’ She was upset.”

  “Is it possible that at some point during that interview, Maxine Hazenberg could have gained access to the glove and tampered with it?”

  “No,” Novak said.

  “You seem sure,” the judge said. “So you are aware of the position of the glove at all times during that interview?”

  “Yes. It was in my pocket.”

  “But you said you forgot about the glove entirely. Otherwise, you would have turned it into the crime lab immediately. How could you have been so sure of the location of a glove you didn’t even remember you had?”

  “I know she didn’t touch it,” Novak said, his voice fading.

  “You just know.” The judge clicked her tongue. “Okay. And you had the glove in your pocket for the rest of the day. And you took off your suit when you got home?”

  “Around the time I went to sleep, I took off the suit.”

  “And you put your suit pants where? Into your closet?”

  “Yes.”

  “Do you live alone, Detective?”

  “No, I’m married.”

  “You have children?”

  “Grown and out of the house, but yes, I do have two children, Your Honor.”

  “They visit sometimes?”

  “Of course. They’re always welcome. I love seeing my grandkids.”

  “So there were other people in your house. Your wife, and maybe other family.”

  “That night, it was just me and my wife.”

  “You took off your suit, hung your pants in the closet—with the evidence bag in the left pocket—and went to sleep.”

  “Yes, Your Honor. And the next morning, I remembered the glove and I found the evidence bag in exactly the same place—”

  “But as defense counsel pointed out, you don’t know for sure that the glove remained there at all times.”

  “No one could have touched it—”

  “But you don’t know. Not for certain.”

  “Your Honor….” Novak looked defeated. “No.”

  The judge stared down at him. “You’ve been a cop for how many decades, and you make a mistake like this?”

  The court stenographer tapped away, capturing the rebuke for the record.

  “Don’t answer that, detective. It was a rhetorical question.
You can step down. I’ve heard enough.”

  20

  Jessie exited the courthouse cautiously. She knew the media would be lying in wait. Having been kept out of the courtroom by an order from Judge Carabotta, the reporters would be ravenous for information about the closed hearing.

  Years as a prosecutor had taught her how to slip past them.

  Outside, she was not surprised to find a group of reporters with bulky cameras, microphones, and other equipment. They were watching the main entrance of the Criminal Justice Center. Jessie, coming from a different exit, went unnoticed. She lowered her head and skirted the crowd.

  Then she heard a familiar voice. Hal Nolan’s voice.

  Oh, give me a break.

  She stopped walking. Hal’s voice was muffled by the wall of reporters surrounding him, but she was able to make out words and phrases: “no evidence here … police cut corners … rush to blame the obvious suspect … they always think it’s the husband….”

  Jessie fought to keep her expression neutral. She didn’t think she’d been spotted, but you never knew for sure if you were on camera. The last thing she needed was a photograph of herself looking angry printed beside a news story about Hal Nolan’s defense of an innocent man railroaded by the police.

  The best thing to do was simply disappear. The reporters—the reputable ones, anyway—would reach out to the DA’s Office for comment after interviewing Nolan. At that time, over the phone, she could feed them reasoned and thought-out statements prepared in advance to douse Nolan’s inflammatory claims.

  But even though her brain was telling her to slip into a cab or at least walk quickly away, her feet remained rooted in place.

  “Did you know the lead detective, Tobias Novak, is retiring in a month? Why assign an aging, soon-to-be retired detective to lead such an important case? I’ll tell you why. Because to the DA’s Office and the police department, this isn’t an important case. They did not think it really needed to be investigated. They figured they had their killer and all they had to do was a put on a perfunctory investigation and then arrest him and bring him to court. But I have news for the DA’s Office and the police department. Mr. Hazenberg is represented by the Nolan law firm, and we plan to fight.”